Individual Rights Doctrines Generally

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 915

Sub-Part One of Part IV of this book, Chapters 17-20, detailed the constitutional doctrines involving structural issues: judicial review, federalism, separation of powers, and checks and balances. The remainder of this book considers constitutional protections involving individual rights.

Sub-Part Two of Part IV, in Chapters 21-24, considers the general doctrines applied in judicial review of individual rights, including the protection given economic and non-economic rights by sources other than the First Amendment, Fifth Amendment Due Process Clause, and Civil War Amendments, that is, the 13th, 14th, and 15th Amendments. These named provisions have triggered much litigation in our Nation's history, and thus require treatment in separate chapters.

Sub-Part Three of Part IV, Chapters 25-28, considers the Civil War Amendments, including the 14th Amendment's Due Process and Equal Protection Clauses, which are directly applicable only against the states, but which are applicable against the federal government through the Fifth Amendment Due Process Clause, considered along with the 14th Amendment Due Process Clause in Chapter 27. Sub-Part IV of Part IV, in Chapters 29-32, considers the First Amendment, which is directly applicable against the federal government, but which is applicable against the states as part of the 14th Amendment Due Process Clause analysis, discussed at ß 27.2.

All of these constitutional protections apply to government action, with the exception of the 13th Amendment, which protects against both governmental and private acts of slavery or involuntary servitude, discussed at ß 25.1. Determining what actions constitute government action is addressed by the state action doctrine, discussed at ß 21.1. Chapter 21 continues by considering the structure of judicial reasoning that is used once state action is found, that is, the importance of government interests involved, the fit between government means and ends, and the severity of the burden on individual rights. Also considered is whether the Court uses a categorical approach or a balancing test, and whether either calls for considering elements or factors. The issues are...

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