The old federalism resulted in the establishment of basic rights that are protected from infringement by government. The new federalism results in extensions of both the scope of our rights and the scope of their protection. The scope of natural rights protected is determined by the inalienability of such rights for all men. The scope of their protection depends on such issues as the points of overlap of the individual rights of the parties, the extent to which the parties engage the public in their transaction, etc.
When do the rights of one party yield to the conflicting rights of another? A logical standard is the extent to which each party has a claim based on a natural right or freedom. You may elect to constrain your right to free speech if you know I will exert my right to privacy and collect money damages from you if you tell a malicious lie about me.
When is private action public enough to trigger constitutional guarantees? A logical standard is the extent of involvement with public activities. If a private entity is substantially involved with public activities, its actions should be treated as those of a public entity for purposes of adjudicating its actions that deprive a person of affirmative rights that are constitutionally guaranteed. It is settled law that our agencies of government cannot act without regard to an individual's rights or liberty. Why then should an entity that makes a profit from its association with the public be able to interfere with impunity with an individual's natural rights?
The authors invite communications from readers about the scope of protection provided by the bill of rights in the states where they live.
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