[SOUND] I said, there were two situations where private conduct has to comply with the Constitution. One, of course, is the Public Functions Exception, the other is called The Entanglement Exception. And what this says is, if the government is affirmatively authorizing, encouraging, facilitating unconstitutional conduct, the Constitution applies. Either the government is going to have to stop what it's doing, or the private conduct is going to have to comply with the constitution. Let me give you some famous examples of this. Perhaps, the most famous and most important was the case from 1948 called Shelley versus Kramer. It involved what are commonly referred to as racially restrictive covenants. These were contractual provisions often found in deeds to property that limited the ability to sell property to African-Americans or to Jews. Sometimes, it would be about Latinos and Asians. And there was literally to be thought of like a contract among members of a neighborhood. They would not sell their property, let's just say, most commonly to Blacks or Jews. And it may very well be if you look back and focus on the deed to your property, you'll see from long ago, there's such a racially restrictive covenant. The issue in Shelley versus Kraemer was whether a court could enforce the terms of a racially restrictive covenant. Could a court stop one of the members to the contract from selling the property to Blacks or Jews in violation of that contract? And the Supreme Court ruled in Shelley versus Kraemer, that courts cannot enforce racially restrictive covenants. The Supreme Court said, when a court enforces a racially restrictive covenant, it's the government. Through one of its branches, the judiciary, that's enforcing discrimination, that's facilitating discrimination. Another example here would be a case this was from the early 1960s, a case called Burton versus Wilmington Parking Authority. Burton versus Wilmington Parking Authority, it involved the Wilmington Delaware Parking Authority. It leased space to a restaurant, The Eagle Restaurant. The Eagle Restaurant refused to admit or serve African-American customers. A lawsuit was brought, and the Supreme Court said, for the government to lease space to a restaurant that racially discriminates, is the government authorized, to facilitate discrimination. The court said, if the government wants to lease property to the restaurant that discriminates, then the government's going to have to insist that the restaurant stop that behavior. If the restaurant continues to discriminate, the government must then exclude it. But it's important to remember that the Entanglement Exception is a narrow one. So let me give you some examples to show this. One is a case called Rendell-Baker versus Kohn. Rendell-Baker versus Kohn was a 1982 decision of the Supreme Court. It involved a private school in Massachusetts that provided special education to the students. A teacher of the school criticized the principal, and she was fired. Some other teachers spoke up on her behalf, and they were fired, too. The school was over 99% funded by the government. The teachers said, given that the government is almost completely subsidizing the school, that should be enough entanglement for the Constitution to apply. The Supreme Court ruled in favor of the school and against the teachers who had been fired. The Supreme Court said, the state of Massachusetts hadn't done anything to encourage the firing of teachers because the speech. The Supreme Court articulated a principle that's quite important. Government subsidy is not an enough for state action. The fact, that an entity, a private university, a private corporation gets government money is not enough for the Constitution to apply. The government has to do something much more in the nature of encouraging the unconstitutional behavior, authorizing it, facilitating it for the Constitution to apply. One more example of how narrow the Entanglement Exception is, is a case called Moose Lodge versus Irvis from the early 1970s. The case is about,as the title implies, a Moose Lodge in the state of Pennsylvania. This private club, this Moose Lodge refused to serve African-American customers. A lawsuit was brought, the argument was that the state's grant of a liquor licence to the Moose Lodge is sufficient government entanglement for the Constitution to apply. The Supreme Court rejected that argument. The Supreme Court said that the liquor license was not enough for state action. Thus, the Moose Lodge could continue to discriminate, and it could keep its liquor license in the state of Pennsylvania. Is there a meaningful difference between the Parking Authority in Wilmington, Delaware and the Moose Lodge in Pennsylvania? Or is it just the passage of time, the shift in terms of the ideology of the Supreme Court? Whatever it is, first basic principle of constitutional law that I wannna talk about. So I referred to it as the State Action Doctrine, that is the Constitution applies only to the government and government officials. Private conduct does not have to comply with the Constitution. The second principle that I wanted to talk about regarding the structure of the constitution's protecting the liberties, is about the application of the Bill of Rights to the states. As you know, as I talked about in part one of this lecture, the Bill of Rights, are the first Ten Amendments to the Constitution. They're really the first Eight Amendments. The Ninth Amendment says the enumeration of some rights doesn't deny or disparage others. The Tenth says, all powers not granted to the United States non prohibitive of the states are reserved to the states and the people, respectively. So it's really Amendments One through Eight that state individual liberties. When the Bill of Rights was originally ratified, as I said, it applied only to the federal government. In fact, in 1833, in Barron versus Mayor of the City of Baltimore, the Supreme Court said it would be unthinkable to apply the Bill of Rights to private conduct. It would be unthinkable to apply the Bill of Rights, the Supreme Court said, to state and local governments. The Bill of Rights was all about in the eyes of the Supreme Court limiting what the federal government could do. In 1868, the 14th Amendment was adopted. Among other things, Section 1 of the 14th Amendment says, no state shall deprive any person of life, liberty, or property, without due process of law. In the late 19th century, the Supreme Court begins saying that the word liberty in the due process clause applies fundamental rights to state and local governments. The Supreme Court said, among the rights that are deemed fundamental are some of the provisions of the Bill of Rights. And so the Supreme Court began to say that a provision of the Bill of Rights, a right enumerated there, could be applied to state and local governments by being found to be included. The technical term is incorporated into the due process clause of the 14th Amendment. A debate then ensued, it was a heated debate. It was one of the major constitutional controversies of the mid 20th century. On the one side of the debate, there were what were called the total incorporationists. They believed that all of the rights in the Bill of Rights are fundamental. They believe that all should be found to be included, incorporated in the due process clause of the 14th Amendment and applied to the states. On the other side of the debate were the selective incorporationists. They believed that only some of the rights in the Bill of Rights were fundamental. And that only these would be applied to state and local governments through the 14th Amendment. Well, this debate went on for several decades. In one sense, the selective incorporationists prevailed in this today. Never has the Supreme Court held, not to this day, that all of the Bill of Rights apply to state and local governments. Rather the court has always said, only those parts in the Bill of Rights, that are fundamental rights. But for more practical perspective, the total incorporationists prevailed. One by one, the Supreme Court found almost all of the provisions of the Bill of Rights to be fundamental rights and to apply to state and local governments. Here is a list of the only rights that have never been deemed incorporated. These are the only rights that have never been applied to state and local governments. Would we put it in another for you. All of the Bill of Rights apply to state and local governments except for the following. The Third Amendment right to not have soldiers quartered in a person's home. We tend to forget about the Third Amendment. Now, there's no doubt, if a state or local government tried to force people to house soldiers, the Third Amendment, be found by the Supreme Court, to apply to state and local governments. But there's never been a Third Amendment case before the Supreme Court. So it is to be on the list of rights that's not deemed incorporated. Second, the Fifth Amendment right to a grand jury indictment in a criminal case. Before a person can be tried for a crime in a Federal Court, there has to be a grand jury indictment, but state governments don't have to use grand juries. If they want to proceed to trial without a grand jury, like on a prosecutor's information or a preliminary hearing, they can do so. A third example of a right that doesn't apply to state and local governments is the Seventh Amendment right to jury trial in civil cases. The Supreme Court has said that the Seventh Amendment right to jury trial in civil cases has never been deemed incorporated. It's never been found to apply to state and local governments. And the fourth example here is the Eighth Amendment right against excessive fines. The Eighth Amendment right against excessive fines has never been found by the Supreme Court to apply to state and local governments. But other than these four provisions, all of the rest of the Bill of Rights apply to state and local governments through the incorporation, the inclusion, into the due process clause of the 14th Amendment. My third and final topic, as to the structure of the constitution's protection of individual liberties, is what referred to as the levels of scrutiny. Nothing is more important to understanding individual liberties and equal protection of the Constitution than the levels of scrutiny. Whenever there's a case, in any court, about individual liberties or about discrimination, the outcome depends on the level of scrutiny used. Let me try to explain the concept of the level of scrutiny. And then I'll tell you about the three levels of scrutiny. The Supreme Court has said, and I'll discuss this in detail, that there are times when the courts are to be very suspicious of the government. For example, if the government discriminate based on race, then it's going to be very suspicious of the government. But there's other times when the court's not going to be very suspicious of the government. If the government says, that the everyone has to 16 years old and pass the test of a driver's licence, there's no reason for the court to be suspicious of that. And so the Supreme Court had said that depending on the kind of discrimination, there'll be more or less deference to the government. Same thing is true in the area of rights. If something is a fundamental right, then there's no presumption in favor of the government. And it's a fundamental right, then the government's going to have to meet a heavy burden in order to justify infringing it. On the other hand, if it's not a fundamental right, then the government's action should be allowed, so long as they're reasonable. That's what the levels of scrutiny are about. It's about how to structure the balancing test, how to weigh the government's interest against the infringement on the rights or the discrimination. Where the level of scrutiny is differential, then it's not going to take very much of a government interest for the law to be upheld. But if it's a race classification or a fundamental right, then the Court's going to be very suspicious of the government, and the level of scrutiny then is to facilitate judicial review. Let me be more specific, in telling you about the three levels of scrutiny. And it's key to know that throughout my discussion of individual liberties and civil rights in parts six through ten of my lecture, I'm going to be constantly referring back to these levels of scrutiny.
