Intelligence Law School - Course 1: Lesson 3.1.3 Government Action Requirement


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LESSON 3: CONSTITUTIONAL LAW


3.1 Introduction to Constitutional Law


3.1.3 Government Action Requirement


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Annotated Lecture Transcript

3.1.3 Government Action Requirement

American intelligence agencies and their employees are government actors and are bound to conduct their official actions always in accordance with constitutional law.

But notice that I said “official” actions.

It’s important to point out right from the start that, as a general principle, the Constitution and constitutional law applies directly only to government action.[1]

Private conduct by ordinary citizens is not directly governed by the Constitution in most cases.[2]

Ø  Two Small Exceptions: In fact, there are only two instances in which purely private conduct is specifically regulated by the U.S. Constitution:

o   (1) The 13th Amendment, which bars even private citizens from owning slaves;[3] and

o   (2) The 18th Amendment—which has now been repealed[4]—that prohibited private parties from engaging in the manufacture, sale, or transportation of intoxicating liquors.[5] Prohibition.

Other that those two examples, the Constitution directly regulates only governmental action.[6]

 

Footnotes

[1] See CBS v. Democratic Nat’l Comm., 412 U.S. 94 (1973) (restricting application of the Fifth Amendment's Due Process Clause to federal governmental actors); see also Shelley v. Kraemer, 334 U.S. 1, 13 (1948) ("[T]he action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.").

[2] See generally Terry v. Adams, 345 U.S. 461, 473 (1953) (concurring). ("[t]he vital requirement is State responsibility,' [...] 'that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme' to deny protected rights.").

[3] U.S. Const. amend. XIII (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.”).

[4] U.S. Const. amend. XXI (“The eighteenth article of amendment to the Constitution of the United States is hereby repealed. The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”).

[5] U.S. Const. amend. XVIII (“After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”); but see U.S. Const. amend. XXI (“The eighteenth article of amendment to the Constitution of the United States is hereby repealed. The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.”).

[6] See generally Congressional Research Serv., The Constitution of the United States of America: Analysis and Interpretation, First Amendment, S. Doc. No. 108-17 (2002), available at https://intelligencelaw.com/files/pdf/law_library/crs/CRS_1st_Amendment_2002.pdf (“The First Amendment by its terms applies only to laws enacted by Congress, and not to the actions of private persons. This leads to a ‘‘state action’’ (or ‘‘governmental action’’) limitation similar to that applicable to the Fourteenth Amendment. The limitation has seldom been litigated in the First Amendment context, but there is no obvious reason why analysis should differ markedly from Fourteenth Amendment state action analysis. Both contexts require ‘‘cautious analysis of the quality and degree of Government relationship to the particular acts in question.’’ [Citing CBS v. Democratic Nat’l Comm., 412 U.S. 94, 115 (1973) (opinion of Chief Justice Burger).] In holding that the National Railroad Passenger Corporation (Amtrak) is a governmental entity for purposes of the First Amendment, the Court declared that ‘‘[t]he Constitution constrains governmental action ‘by whatever instruments or in whatever modes that action may be taken.’. . . [a]nd under whatever congressional label.’’ [Citing Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (quoting Ex parte Virginia, 100 U.S. 339, 346–47 (1880)). The Court refused to be bound by the statement in Amtrak’s authorizing statute that the corporation is ‘‘not . . . an agency or establishment of the United States Government.’’ This assertion can be effective ‘‘only for purposes of matters that are within Congress’ control,’’ the Court explained. ‘‘It is not for Congress to make the final determination of Amtrak’s status as a governmental entity for purposes of determining the constitutional rights of citizens affected by its actions.’’ 513 U.S. at 392.]”).

 


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