Got a question about bringing constitutional claims.

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Gamecubesupreme
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Got a question about bringing constitutional claims.

Postby Gamecubesupreme » Thu Mar 14, 2013 12:39 am

If I understand the Bill of Right correctly, it only applies to the state and federal government, right?

Does that mean you can only bring constitutional claims against state actors, and no one else?

So if a public employer, like McDonald, enacts a policy that would violate the 4th Amendment, I cannot directly raise a constitutional claim, right? I am assuming I would have to use either federal or state statutory law.

Or am I mistaken?

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EvilClinton
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Re: Got a question about bringing constitutional claims.

Postby EvilClinton » Thu Mar 14, 2013 12:41 am

Gamecubesupreme wrote:If I understand the Bill of Right correctly, it only applies to the state and federal government, right?

Does that mean you can only bring constitutional claims against state actors, and no one else?

So if a public employer, like McDonald, enacts a policy that would violate the 4th Amendment, I cannot directly raise a constitutional claim, right? I am assuming I would have to use either federal or state statutory law.

Or am I mistaken?

I think you mean private employer, but yes you are correct. All of the pertinent rights have been codified into law though (see Civil Rights Act of 1964)

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Gamecubesupreme
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Re: Got a question about bringing constitutional claims.

Postby Gamecubesupreme » Thu Mar 14, 2013 12:45 am

EvilClinton wrote:
Gamecubesupreme wrote:If I understand the Bill of Right correctly, it only applies to the state and federal government, right?

Does that mean you can only bring constitutional claims against state actors, and no one else?

So if a public employer, like McDonald, enacts a policy that would violate the 4th Amendment, I cannot directly raise a constitutional claim, right? I am assuming I would have to use either federal or state statutory law.

Or am I mistaken?

I think you mean private employer, but yes you are correct. All of the pertinent rights have been codified into law though (see Civil Rights Act of 1964)


I meant a public employer that's NOT a state-actor.

I don't think the 1964 Act would even apply to private employers.

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A. Nony Mouse
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Re: Got a question about bringing constitutional claims.

Postby A. Nony Mouse » Thu Mar 14, 2013 12:51 am

The Civil Rights Act applies to private employers. That's the whole point. It doesn't cover every constitutional right, though; since you mentioned Fourth Amendment, you don't have a constitutional right to be free from unreasonable searches by private employers/citizens. If a private citizen/employer busts down your door and searches your home/person you could bring a tort claim, but not a constitutional claim. (Or of course criminal charges might result.)

But I'm not sure what you mean by a public employer that's not a state actor; public = government = state actor. McDonald's is a private employer. (I mean, they employ the public, but that's not what being a public employer means.) Again, since you mentioned Fourth Amendment, if you're thinking about something like mandatory drug testing of employees, a private employer could totally do that without any constitutional implications. (They couldn't do something like only require drug testing of employees based on gender/race/religion etc., because that would violate Title VII. But AFAIK, there wouldn't be any constitutional issues if the policy was equitably applied.)

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Gamecubesupreme
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Re: Got a question about bringing constitutional claims.

Postby Gamecubesupreme » Thu Mar 14, 2013 1:03 am

A. Nony Mouse wrote:The Civil Rights Act applies to private employers. That's the whole point.


Oh right, can't believe I missed that part.

Only private employers with 14 or fewer employees are exempt.

MinEMorris
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Re: Got a question about bringing constitutional claims.

Postby MinEMorris » Thu Mar 14, 2013 4:35 am

I think you've figured out what you were curious about, but I thought I'd mention a few things that I found helpful to keep in mind when I was learning conlaw:

1. While we say things like the bill of rights doesn't "apply" to state government, don't misinterpret that as meaning that the constitution somehow isn't in effect with regard to state governments. The constitution is the supreme law of the land; it is always in effect and always applies. The reason the bill of rights doesn't give you any direct recourse against state actors is because it was understood at the time that the bill of rights were adopted that they applied only against the federal government. The rights not being applicable against state actors isn't the result of some state exception to the constitution or some limitation on congressional power: it's simply the scope that they decided for the amendments when they made the amendments.

2. Most of the bill of rights now applies against all government actors through interpretation of the 14th amendment. This process of interpreting the due process clause within the 14th amendment--which, mind you, expressly applies against the states--to include a guarantee of the rights enumerated under the bill of rights is called "incorporation" by scholars (http://en.wikipedia.org/wiki/Incorporat ... _of_Rights). While most portions of the bill of rights have been incorporated, some still have not been. Not to scare you, but if you live outside the second circuit, your local government might quarter soldiers in your home at any moment! Anyway, just remember that even today you technically don't have a 4th amendment right to not be subjected to an unreasonable search by the state trooper that pulls you over. Instead, you have a 14th amendment right to not be subjected to such a search. This difference is of course meaningless in terms of substance, but I think being a stickler for technical precision in your understanding of the law makes things easier for you in the long run.

3. The constitution is in significant part a combination of delegations of power and restrictions on power. Whenever congress passes an act, the first question to ask is whether there's anything in the constitution that says they have the power to do that. Then the next question to ask is whether there's anything that limits that power in a way that would disable them from doing what they're attempting to do. For example, banning the buying and selling across state lines of any books containing political speech is certainly a regulation of interstate commerce, which Congress has power to do. The first amendment, however, is a limitation on that power. After taking into consideration that limitation, Congress, on the whole, in fact does not have the power to pass the ban.
Sometimes you want to argue for a power or limitation that the constitution does not expressly give or say. Things get trickier there, but it's not impossible to argue for by referencing things like the structure of the constitution or related parts of it.

HTH. I'm no expert, but I've felt those few things have helped me keep my bearings when dealing with constitutional law issues throughout law school.

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LAWYER2
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Re: Got a question about bringing constitutional claims.

Postby LAWYER2 » Thu Mar 14, 2013 12:21 pm

^^Good stuff^^

goodolgil
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Re: Got a question about bringing constitutional claims.

Postby goodolgil » Thu Mar 14, 2013 4:42 pm

The parts of the Civil Rights Act that allow you to sue private actors for discrimination are usually derived from Congress's Commerce Clause powers. Thus, those claims (like a Title VII employment discrimination action) are statutory lawsuits, not constitutional suits.

sfhaze
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Re: Got a question about bringing constitutional claims.

Postby sfhaze » Thu Mar 14, 2013 4:54 pm

MinEMorris wrote:I think you've figured out what you were curious about, but I thought I'd mention a few things that I found helpful to keep in mind when I was learning conlaw:

1. While we say things like the bill of rights doesn't "apply" to state government, don't misinterpret that as meaning that the constitution somehow isn't in effect with regard to state governments. The constitution is the supreme law of the land; it is always in effect and always applies. The reason the bill of rights doesn't give you any direct recourse against state actors is because it was understood at the time that the bill of rights were adopted that they applied only against the federal government. The rights not being applicable against state actors isn't the result of some state exception to the constitution or some limitation on congressional power: it's simply the scope that they decided for the amendments when they made the amendments.

2. Most of the bill of rights now applies against all government actors through interpretation of the 14th amendment. This process of interpreting the due process clause within the 14th amendment--which, mind you, expressly applies against the states--to include a guarantee of the rights enumerated under the bill of rights is called "incorporation" by scholars (http://en.wikipedia.org/wiki/Incorporat ... _of_Rights). While most portions of the bill of rights have been incorporated, some still have not been. Not to scare you, but if you live outside the second circuit, your local government might quarter soldiers in your home at any moment! Anyway, just remember that even today you technically don't have a 4th amendment right to not be subjected to an unreasonable search by the state trooper that pulls you over. Instead, you have a 14th amendment right to not be subjected to such a search. This difference is of course meaningless in terms of substance, but I think being a stickler for technical precision in your understanding of the law makes things easier for you in the long run.

3. The constitution is in significant part a combination of delegations of power and restrictions on power. Whenever congress passes an act, the first question to ask is whether there's anything in the constitution that says they have the power to do that. Then the next question to ask is whether there's anything that limits that power in a way that would disable them from doing what they're attempting to do. For example, banning the buying and selling across state lines of any books containing political speech is certainly a regulation of interstate commerce, which Congress has power to do. The first amendment, however, is a limitation on that power. After taking into consideration that limitation, Congress, on the whole, in fact does not have the power to pass the ban.
Sometimes you want to argue for a power or limitation that the constitution does not expressly give or say. Things get trickier there, but it's not impossible to argue for by referencing things like the structure of the constitution or related parts of it.

HTH. I'm no expert, but I've felt those few things have helped me keep my bearings when dealing with constitutional law issues throughout law school.

And with the above, you've put most con law profs to shame. If only they could be this clear... :P




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