MAKING LAWCHAPTER 3

EARLY LAW

• CODE OF HAMMURABI• FIRST KNOWN WRITTEN LEGAL CODE• EYE-FOR-AN-EYE PHILOSOPHY

• ROMAN LAW• INFLUENCED BY BABYLONIAN LEGAL PRINCIPLE• THE TWELVE TABLES OF ROMAN LAW (450 BCE)

• FIRST ENTIRELY SECULAR WRITTEN LEGAL CODE• CRIMINAL LAW BEGAN TO CHANGE FOCUS FROM JUST RESOLVING

DISPUTES TO SEEING OFFENSES AS AGAINST SOCIETY AS WHOLE

COMMON LAW

• NORMAN CONQUEST OF ENGLAND (1066) BROUGHT FEUDAL LAW TO ENGLAND• BASIS FOR COMMON LAW

• ENGLAND SLOWLY DEVELOPED COMMON LAW SYSTEM• BY REIGN OF HENRY II (1154-1189) BODY OF LAW

DEVELOPED AND APPLIED “COMMONLY” THROUGH ENGLAND• COMMON LAW SYSTEM WELL DEVELOPED IN ENGLAND BY

THIRTEENTH CENTURY

COMMON LAW

• RANULF DE GLANVILL (1188)• DETAILED TRANSITION FROM SUBSTANTIVE IRRATIONAL DECISION-

MAKING OF PRE-NORMAN ENGLAND TO ADHERENCE TO FORMAL LEGAL RULES

• MAGNA CARTA (1215)• NEXT IMPORTANT DOCUMENT IN EVOLUTION• EARLY VIEW OF RIGHTS

• TRIAL BY JURY• PROPORTIONAL PUNISHMENT• SELF-INCRIMINATION

COMMON LAW: HENRY DE BRACTON

• FURTHERED “COMMONALITY” OF COMMON LAW• DISCUSSED “COMMON LAW” AND “JUDGE-MADE LAW” ASPECTS OF

ENGLISH LAW• ENAMORED WITH IDEA COMMON LAW WAS BASED ON CASE LAW

DECIDED ON ANCIENT CUSTOM• COMMON LAW THUS JUDGE-MADE LAW• JUDGES JUSTIFIED DECISIONS BY REFERRING TO CUSTOMS,

TRADITION, HISTORY, AND PRIOR JUDICIAL DECISIONS• OFTEN REFERRED TO AS FATHER OF CASE LAW

PRECEDENT AND STARE DECISIS

• PRECEDENT DEFINED • UNDER COMMON LAW SYSTEM, EVERY FINAL DECISION BY COURT

CREATES PRECEDENT• GOVERNS COURT ISSUING DECISION AS WELL AS ANY LOWER

COURTS• COMMON LAW SYSTEM BROUGHT FROM ENGLAND TO COLONIAL

AMERICA• IN UNITED STATES, PRECEDENT IS BINDING ONLY ON THOSE

COURTS WITHIN JURISDICTION OF COURT ISSUING OPINION

PRECEDENT AND STARE DECISIS

• STARE DECISIS DEFINED• IF THERE IS PRIOR DECISION ON LEGAL ISSUE GERMANE

TO CURRENT CASE, COURT WILL BE GUIDED BY THAT DECISION

• THIS IS PRINCIPLE BEHIND ESTABLISHING PRECEDENT• ENSURES PREDICTABILITY FOR SIMILAR CASES• INVOLVES RESPECT FOR AND BELIEF IN VALIDITY OF

PRECEDENT

PRECEDENT AND STARE DECISIS

• NOT EVERY PRONOUNCEMENT COURT MAKES IN A RULING ESTABLISHES PRECEDENT

• RATIO DECIDENDI• DEFINED• RATIONALE USED TO ARRIVE AT DECISION• “REASON FOR DECISION”

• OBITER DICTA• DEFINED• “THINGS SAID BY THE WAY”

PRECEDENT AND STARE DECISIS

• PRECEDENT NOT NECESSARILY UNCHANGEABLE• JUDGE-MADE LAW MAY BE OVERRULED BY ACT OF

LEGISLATURE• PRECEDENT-ISSUING COURT MAY OVERRULE PRIOR

DECISION• HIGHER COURT MAY REVERSE LOWER COURT’S DECISION• COURT MAY DISTINGUISH ONE CASE FROM ANOTHER

• DETAILS MAY BE SLIGHTLY DIFFERENT

WILLIAM BLACKSTONE

• BELIEVED LAWS WERE CREATION OF GOD WAITING TO BE DISCOVERED VIA USE OF REASON

• FOUR VOLUME WORK WAS DEFINITIVE WORK ON COMMON LAW FOR AT LEAST NEXT CENTURY

• ORGANIZED COMMON LAW INTO FOUR PARTS:• PROCEDURAL LAW• SUBSTANTIVE LAW• TORTS• LAW OF CONTRACTS

WILLIAM BLACKSTONE

• HAD TREMENDOUS INFLUENCE ON FOUNDING FATHERS• INFLUENTIAL ON PHILOSOPHY BEHIND DECLARATION OF

INDEPENDENCE• PHRASES SUCH AS “SELF-EVIDENT” AND “UNALIENABLE

RIGHTS”

SOURCES OF LAW

• JUDGE-MADE LAW (COMMON LAW)• LEGISLATIVE LAW

• CONSTITUTION• STATUTES• ORDINANCES• ADMINISTRATIVE REGULATIONS

• OTHER SOURCES OF APPROPRIATE CONDUCT• RELIGION AND ETHICS

SOURCES OF LAW

Constitution (Constitutional Law)

Legislative Statutes ( )

Executive Agency (Administrative Law)

Judicial Cases (Common Law)

LEGISLATION

• LEGISLATIVE ENACTMENTS (BILLS) ARE STATUTES• COLLECTIONS OF STATUTES ARE CODES• INCLUDES BOTH CIVIL AND CRIMINAL LAW

• CRIMINAL LAW REFERRED TO AS PENAL CODE• ACTS OF LEGISLATURE NOT LAWFUL PER SE

• MAY NOT LIMIT CONSTITUTION UNDER WHICH IT WAS CREATED

ADMINISTRATIVE REGULATIONS

• ANOTHER FORM OF LEGISLATION• HAVE FORCE OF LAW

• WILL BE ENFORCED BY COURTS LIKE STATUTE• ISSUED BY AGENCIES OF EXECUTIVE BRANCH OR

CREATED THROUGH LEGISLATIVELY DESIGNATED POWERS

• ISSUED BY BOTH FEDERAL AND STATE GOVERNMENTS

STATUTES

• FREQUENTLY WRITTEN BROADLY• ADMINISTRATIVE AGENCIES GIVEN TASK OF FILLING IN

BLANKS• WRITTEN AMBIGUOUSLY FOR TWO MAIN REASONS:

• DIFFICULT TO DEFINE SOMETHING INVOLVING HUMAN CONDUCT

• POLITICAL IMPLICATIONS AND NEED FOR COMPROMISE

SOURCES OF INDIVIDUAL RIGHTS

• INDIVIDUAL RIGHTS DEFINED• SEVERAL SOURCES

• FEDERAL AND STATE CONSTITUTIONS• CASE LAW• COURT RULES• LEGISLATION

THE CONSTITUTION

• FIRST ATTEMPT WAS ARTICLES OF CONFEDERATION (1781)• FEDERAL GOVERNMENT POWERLESS• LACKED AUTHORITY TO TAX• LACKED AUTHORITY TO RAISE ARMY• LACKED AUTHORITY TO FORCE STATES TO COMPLY WITH ANY

MANDATES• TWELVE OF THIRTEEN STATES MET IN PHILADELPHIA IN 1787

TO REPLACE ARTICLES OF CONFEDERATION• RESULT WAS FORMATION OF U.S. CONSTITUTION

THE U.S. CONSTITUTION

• CREATED STRONG CENTRAL GOVERNMENT• MOSTLY CONCERNED WITH ESTABLISHING FEDERAL

GOVERNMENT’S POWERS AND LIMITATIONS• PROTECTION FROM VERY FEW INDIVIDUAL RIGHTS:

• HABEAS CORPUS• BILLS OF ATTAINDER• EX POST FACTO LAWS

• SEVERAL STATES DEMANDED MORE BEFORE RATIFYING

THE BILL OF RIGHTS

• RESULT WAS BILL OF RIGHTS• RATIFIED IN 1791

• FIRST EIGHT AMENDMENTS SET OUT TWENTY-THREE INDIVIDUAL RIGHTS

• PROTECTIONS AGAINST GOVERNMENT ACTION• ONLY IN TWENTIETH CENTURY WERE THESE RIGHTS

APPLIED TO STATE GOVERNMENTS

THE FIRST AMENDMENT

CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF; OR ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS; OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES.

THE FIRST AMENDMENT: FREEDOM OF RELIGION

1. GOVERNMENT SHALL NOT ESTABLISH A RELIGION2. GOVERNMENT SHALL NOT INTERFERE WITH INDIVIDUAL’S

RELIGIOUS PRACTICES• ESSENTIALLY: GOVERNMENT CAN NEITHER PROMOTE NOR

DESTROY RELIGION• FIRST CLAUSE OFTEN REFERRED TO AS ESTABLISHMENT

CLAUSE• EVERSON V. BOARD OF EDUCATION (1947)

• “WALL OF SEPARATION BETWEEN CHURCH AND STATE”

THE FIRST AMENDMENT: FREEDOM OF RELIGION

• LEMON V. KURTZMAN (1971)• GOVERNMENT CAN BE INVOLVED IN RELIGION IF:

1. STATE HAS A SECULAR PURPOSE2. PRIMARY PURPOSE OF STATUTE MUST BE NEITHER PRO- NOR

ANTI-RELIGION3. STATE DOES NOT FOSTER EXCESSIVE GOVERNMENT

ENTANGLEMENT WITH RELIGION

• VALID GOVERNMENT REGULATIONS ARE PERMITTED

THE FIRST AMENDMENT: FREEDOM OF SPEECH

• ONE OF MOST TREASURED RIGHTS• RIGHT TO SAY THINGS THAT ANGER OTHERS• INCLUDES VERBAL, WRITTEN, AND CERTAIN PHYSICAL

ACTS• SIGNS• PICKETING• BURNING OF AMERICAN FLAG

• IS NOT ABSOLUTE

THE FIRST AMENDMENT: FREEDOM OF SPEECH

• GOVERNMENT CAN REGULATE OBSCENITY• GOVERNMENT CAN REGULATE SPEECH LIKELY TO

PROVIDE VIOLENCE• INCITEFUL SPEECH• “FIGHTING WORDS”

• COMMERCIAL SPEECH MAY BE REGULATED MORE THAN “POLITICAL” SPEECH

THE SECOND AMENDMENT

A WELL REGULATED MILITIA, BEING NECESSARY TO THE SECURITY OF A FREE STATE, THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, SHALL NOT BE INFRINGED.

THE SECOND AMENDMENT

• ONE OF ONLY TWO “INDIVIDUAL” RIGHTS CONTAINED IN ENGLISH BILL OF RIGHTS

• INTENDED TO PROTECT PRIVATE CITIZENS AND GROUPS OF CITIZENS (MILITIAS)• ALLOW THEM TO PROTECT THEMSELVES FROM OPPRESSION BY FEDERAL

GOVERNMENT• DISTRICT OF COLUMBIA V. HELLER (2008)

• SECOND AMENDMENT PROTECTS RIGHTS OF INDIVIDUAL GUN OWNERS• MILITIAS MERELY ONE REASON FOR NEED OF PROTECTION• ALLOWS FOR REGULATIONS AND RESTRICTIONS

THE THIRD AMENDMENT

NO SOLDIER SHALL, IN TIME OF PEACE BE QUARTERED IN ANY HOUSE, WITHOUT THE CONSENT OF THE OWNER, NOR IN TIME OF WAR, BUT IN A MANNER TO BE PRESCRIBED BY LAW.

THE THIRD AMENDMENT

• WAS PRODUCT OF ITS TIMES• MAKES PRACTICE OF HOUSING SOLDIERS IN PRIVATE

HOMES OF INDIVIDUALS UNCONSTITUTIONAL

THE FOURTH AMENDMENT

THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES, SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED.

THE FOURTH AMENDMENT

• STANDS MOST DIRECTLY BETWEEN INDIVIDUAL AND POLICE• IN RESPONSE BRITISH PRACTICE OF “GENERAL WARRANTS”• EFFORT TO LIMIT ABILITY OF POLICE TO INTERFERE WITH

PRIVATE CITIZENS’ LIVES• REQUIRED REASONABLE AMOUNT OF EVIDENCE

• DOES NOT PRECLUDE ALL SEARCHES AND SEIZURES• ONLY THOSE THAT ARE “UNREASONABLE”

THE FIFTH AMENDMENT

NO PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME, UNLESS PRESENTMENT OR INDICTMENT OF A GRAND JURY, EXCEPT IN CASES ARISING IN THE LAND OR NAVAL FORCES, OR IN THE MILITIA, WHEN IN ACTUAL SERVICE IN TIME OF WAR OR PUBLIC DANGER; NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME OFFENCE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB; NOR SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF, NOR BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION.

THE FIFTH AMENDMENT

• RIGHTS ASSOCIATED WITH CRIMINAL TRIALS:• INDICTMENT BY GRAND JURY• FREEDOM FROM DOUBLE JEOPARDY• RIGHT TO DUE PROCESS AND JUST COMPENSATION• PRIVILEGE AGAINST SELF-INCRIMINATION

• MANY BORN OUT OF REACTION TO PRACTICES IN EUROPE DURING MIDDLE AGES

• STAR CHAMBER, SPANISH INQUISITION, AND SALEM WITCH TRIALS

THE FIFTH AMENDMENT: GRAND JURY

• GRAND JURY DEFINED• SELECTED IN SAME FASHION AS PETIT (TRIAL) JURY

• USED TO DETERMINE WHETHER THERE IS SUFFICIENT EVIDENCE TO TRY A DEFENDANT

• USED TO PROTECT INDIVIDUALS FROM BEING TRIED WITHOUT SOME PROOF OF GUILT

• MEANT AS A CHECK ON SYSTEM

THE FIFTH AMENDMENT: GRAND JURY

• ISSUE INDICTMENTS• DOCUMENT FORMALLY CHARGING DEFENDANT WITH CRIME

• RIGHT DOES NOT APPLY TO STATE TRIALS• HURTADO V. CALIFORNIA (1984)• MAY USE A PROSECUTORIAL “INFORMATION”• SEVERAL STATES REQUIRE GRAND JURY INDICTMENTS

THE FIFTH AMENDMENT: DOUBLE JEOPARDY

• MEANS THAT A JURISDICTION MAY NOT:1. PROSECUTE SOMEONE AGAIN FOR THE SAME CRIME

AFTER THE PERSON HAS BEEN ACQUITTED2. PROSECUTE SOMEONE AGAIN FOR THE SAME CRIME

AFTER THE PERSON HAS BEEN CONVICTED3. PUNISH SOMEONE TWICE FOR THE SAME OFFENSE

THE FIFTH AMENDMENT: DOUBLE JEOPARDY

DOES NOT MEAN THAT:1. STATE MAY NOT TRY SOMEONE AGAIN IF FIRST TRIAL

ENDS IN MISTRIAL OR HUNG JURY2. STATE CANNOT RETRY SOMEONE IF CONVICTION WAS

OVERTURNED ON APPEAL3. PERSON CANNOT BE TRIED UNDER DOCTRINE OF DUAL

SOVEREIGNTY

THE FIFTH AMENDMENT: SELF-INCRIMINATION

• DEFENDANT CAN REFUSE TO SPEAK TO POLICE ABOUT CHARGED CRIME

• CAN REFUSE TO SPEAK AT TRIAL• GRIFFIN V. CALIFORNIA (1965)

• PROSECUTION CANNOT COMMENT ON DEFENDANT’S REFUSAL TO SPEAK

• DOES NOT INCLUDE• BLOOD SAMPLES, FINGERPRINTS, OR LINE-UP PRESENCE

THE FIFTH AMENDMENT: DUE PROCESS

• STATE MUST FOLLOW CERTAIN PROCEDURES• DESIGNED TO PROTECT INDIVIDUAL RIGHTS

• WHENEVER DEPRIVATION OF LIBERTY OR PROPERTY IS IN QUESTION

• THE “TAKING CLAUSE”• EMINENT DOMAIN

• SEIZING OF PRIVATE PROPERTY FOR PUBLIC USE• KELO V. CITY OF NEW LONDON (2005)

THE SIXTH AMENDMENT

IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT SHALL HAVE BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE.

THE SIXTH AMENDMENT

• ASSOCIATED WITH CRIMINAL TRIALS:• RIGHT TO SPEEDY TRIAL• RIGHT TO PUBLIC TRIAL• RIGHT TO TRIAL BY IMPARTIAL JURY• RIGHT TO NOTICE OF CHARGES AGAINST ONESELF• RIGHT TO REPRESENTATION BY COUNSEL• RIGHT TO CONFRONT WITNESSES AGAINST ONESELF

THE SIXTH AMENDMENT: RIGHT TO A SPEEDY TRIAL

• BARKER V. WINGO (1972)• DEFENDANT MUST BE BROUGHT TO TRIAL WITHOUT

“UNNECESSARY DELAY”• “SPEEDY” DETERMINED ON “AD HOC BALANCING BASIS, IN

WHICH CONDUCT OF PROSECUTION AND THAT OF THE DEFENDANT ARE WEIGHED”

• SPEEDY TRIAL ACT OF 1974• SET TIME LIMIT AT ONE HUNDRED DAYS FOR FEDERAL CASES• ALLOWED SIGNIFICANT WIGGLE ROOM

THE SIXTH AMENDMENT: RIGHT TO PUBLIC TRIAL AND NOTICE

OF CHARGES• ORIGINATED IN TRADITIONAL ANGLO-SAXON MISTRUST OF

GOVERNMENT SECRECY• RIGHT TO PUBLIC TRIAL

• DEFENDANTS CAN HAVE PUBLIC ATTEND TRIAL IF THEY WISH• RIGHT TO NOTICE OF CHARGES

• PROSECUTION MUST TELL DEFENDANTS PRIOR TO TRIAL WHAT THEY ARE ACCUSED OF SO THEY CAN PREPARE DEFENSE

THE SIXTH AMENDMENT: RIGHT TO TRIAL BY IMPARTIAL JURY

• JURY MUST BE SELECTED FROM COMMUNITY IN WHICH THE CRIME OCCURRED

• THOSE NOT PREDISPOSED AS TO GUILT OR INNOCENCE OF DEFENDANT• MUST NOT HAVE FORMED AN OPINION• PRESUMPTION OF INNOCENCE

• ANCIENT RIGHT, LATER AFFIRMED BY MAGNA CARTA (1215)

THE SIXTH AMENDMENT: ASSISTANCE OF COUNSEL

• PROVIDED AT ANY PROCEEDING DEEMED TO BE A “CRITICAL STAGE”• PRELIMINARY HEARING• ARRAIGNMENT• TRIAL• APPEAL

• INDIGENT PERSONS MUST BE PROVIDED LAWYER AT STATES EXPENSE• IF POSSIBLE INCARCERATION OF SIX MONTHS OR MORE

• INCLUDES RIGHT TO EFFECTIVE COUNSEL

THE SEVENTH AMENDMENT

IN SUITS AT COMMON LAW, WHERE THE VALUE IN CONTROVERSY SHALL EXCEED TWENTY DOLLARS, THE RIGHT OF TRIAL BY JURY SHALL BE PRESERVED, AND NO FACT TRIED BY A JURY, SHALL BE OTHERWISE RE-EXAMINED IN ANY COURT OF THE UNITED STATES, THAN ACCORDING TO THE RULES OF THE COMMON LAW.

THE SEVENTH AMENDMENT

• PROVIDES FOR RIGHT TO TRIAL BY JURY IN FEDERAL CIVIL TRIALS

• APPLIES ONLY TO FEDERAL TRIALS• HAS NOT BEEN INCORPORATED INTO FOURTEENTH

AMENDMENT

THE EIGHTH AMENDMENT

EXCESSIVE BAIL SHALL NOT BE REQUIRED, NOR EXCESSIVE FINES IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED.

THE EIGHTH AMENDMENT: EXCESSIVE BAIL

• NO RIGHT TO BAIL• STACK V. BOYLE (1951)

• MUST NOT BE SET HIGHER THAN NECESSARY TO ENSURE PRESENCE OF DEFENDANT AT TRIAL

• UNITED STATES V. SALERNO (1987)• PERSONS CONSIDERED THREAT TO SOCIETY CAN BE

DENIED BAIL

THE EIGHTH AMENDMENT: CRUEL AND UNUSUAL

PUNISHMENTS• PROHIBITS TORTURE• PROHIBITS PUNISHMENT DISPROPORTIONATE TO

OFFENSE• DOES NOT PROHIBIT DEATH PENALTY

THE NINTH AMENDMENT

THE ENUMERATION IN THE CONSTITUTION, OF CERTAIN RIGHTS, SHALL NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS RETAINED BY THE PEOPLE.

THE NINTH AMENDMENT

• CODIFIES THE CONCEPT OF NATURAL LAW/RIGHTS• GRISWOLD V. CONNECTICUT (1965)

• INCLUDES SUCH THINGS AS RIGHT TO PRIVACY• ROE V. WADE (1973)• LAWRENCE V. TEXAS (2003)

THE TENTH AMENDMENT

THE POWERS NOT DELEGATED TO THE UNITED STATES BY THE CONSTITUTION, NOR PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE STATES RESPECTIVELY, OR TO THE PEOPLE.

THE TENTH AMENDMENT

• BEEN LARGELY IGNORED BY SUPREME COURT• RESTATES PRINCIPLE OF FEDERALISM AND

CONSTITUTIONALISM• FEDERAL GOVERNMENT HAS NO AUTHORITY UNLESS

GRANTED SO BY CONSTITUTION• WHERE IT HAS NO AUTHORITY, STATES AND INDIVIDUAL

CITIZENS RETAIN SUCH AUTHORITY

OTHER AMENDMENTS: RECONSTRUCTION

AMENDMENTS• PASSED SHORTLY AFTER CIVIL WAR• INTENDED TO PROTECT NEWLY FREED SLAVES FROM ABUSE• COMPRISED OF:

• THIRTEENTH AMENDMENT• FOURTEENTH AMENDMENT• FIFTEENTH AMENDMENT

• NOW USED TO PROTECT ALL CITIZENS FROM STATE ACTIONS THAT IMPINGE ON CONSTITUTIONAL RIGHTS

THE THIRTEENTH AMENDMENT

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.

THE THIRTEENTH AMENDMENT

• PROHIBITS SLAVERY• USED TO UPHOLD CIVIL RIGHTS LEGISLATION• OUTLAWS “BADGES OF SLAVERY” OR PRACTICES

INTENDED TO KEEP BLACKS AT LOWER SOCIAL AND ECONOMIC LEVELS THAN WHITES

THE FOURTEENTH AMENDMENT

ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES, AND SUBJECT TO THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED STATES AND OF THE STATE WHEREIN THEY RESIDE. NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED STATES; NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS.

THE FOURTEENTH AMENDMENT

• FORBIDS STATES FROM MISTREATING CITIZENS• STATES CANNOT DENY CITIZENS DUE PROCESS OF LAW OR EQUAL

PROTECTION• THREE CLAUSES:

• DUE PROCESS CLAUSE• INCORPORATES MANY OF PROVISIONS OF BILL OF RIGHTS, MAKING THEM

APPLICABLE TO STATES• EQUAL PROTECTION CLAUSE

• BANS STATES FROM MAKING ARBITRARY AND UNREASONABLE DISTINCTIONS BETWEEN PEOPLE

• PRIVILEGES AND IMMUNITIES CLAUSE

THE FOURTEENTH AMENDMENT: SUSPECT CLASSIFICATION

• DEFINED• BASED WITHOUT REASON OR ON RACE, GENDER, NATIONAL

ORIGIN, OR RELIGION• NOT ALL CLASSIFICATIONS ARE VIOLATION OF EQUAL PROTECTION• AGE IS NOT IF:

• STATE CAN DEMONSTRATE INTEREST IN HEALTH AND SAFETY OF MINORS

• THERE IS NO HISTORY OF “INVIDIOUS: DISCRIMINATION AGAINST MINORS

STANDARD OF REVIEW

• NOT ALL RIGHTS ENJOY EQUAL PRIVILEGE• DUE PROCESS CLAUSE PROTECTS FUNDAMENTAL RIGHTS

• PALKO V. CONNECTICUT (1937)• DEPENDING ON WHETHER OR NOT SUSPECT

CLASSIFICATION OR FUNDAMENTAL RIGHT INVOLVED• RIGHTS ALSO TREATED DIFFERENTLY

• ONLY RACE AND RELIGION ARE CONSISTENTLY SUSPECT CLASSIFICATIONS

STANDARD OF REVIEW: STRICT SCRUTINY

• STATE MAY NOT ENACT LAWS THAT ABRIDGE FUNDAMENTAL RIGHT UNLESS:• IT HAS COMPELLING INTEREST IN DOING SO• LAW IS “NARROWLY TAILORED” SO RIGHT IS NOT ABRIDGED

MORE THAN NECESSARY• LOOKS AT PURPOSE AND EFFECT OF LAW RATHER THAN

MERELY ACCEPTING LEGISLATIVE CLAIMS OF VALIDITY

STANDARD OF REVIEW: INTERMEDIATE SCRUTINY

• USED WHEN LAWS INVOLVE QUASI-SUSPECT CLASSIFICATIONS• GENDER AND LEGITIMACY

• LAW MUST BE SUBSTANTIALLY RELATED TO AN IMPORTANT GOVERNMENT PURPOSE

STANDARD OF REVIEW: RATIONAL BASIS TEST

• USED WHEN NO FUNDAMENTAL RIGHT OR SUSPECT CLASSIFICATION IS IN QUESTION

• STATES THAT LAWS THAT AFFECT RIGHT OR CLASS CAN BE PASSED SO LONG AS THERE IS RATIONALE BEHIND DOING SO

INCORPORATION

• BARRON V. BALTIMORE (1833)• BILL OF RIGHTS ONLY APPLIES TO FEDERAL GOVERNMENT

• PASSAGE OF FOURTEENTH AMENDMENT (1868) USED TO PROTECT RECENTLY FREED SLAVES FROM SOUTHERN ABUSE• CLAUSES PROTECTED INDIVIDUALS FROM STATE

GOVERNMENTS• ORIGINALLY APPLIED ONLY TO FREED SLAVES

INCORPORATION

• SLAUGHTERHOUSE CASES (1873)• FAILED EARLY ATTEMPT TO APPLY LANGUAGE OF PRIVILEGES AND

IMMUNITIES CLAUSE TO THOSE OTHER THAN RECENTLY FREED SLAVES• DURING LATTER HALF OF THE NINETEENTH CENTURY

• COURTS USED INCORPORATION TO PRECLUDE STATE ECONOMIC REGULATION

• DURING THE TWENTIETH CENTURY• COURTS BEGAN USING FOURTEENTH AMENDMENT TO PROTECT

INDIVIDUALS• BEGAN USING SUBSTANTIVE DUE PROCESS

INCORPORATION

• DEFINED• FOUR SCHOOLS OF THOUGHT

• TOTAL INCORPORATION• TOTAL INCORPORATION PLUS• FUNDAMENTAL RIGHTS/ORDERED LIBERTY• SELECTIVE INCORPORATION

INCORPORATION

• TOTAL INCORPORATION• ENTIRE BILL OF RIGHTS IS APPLICABLE TO STATES• NOT VERY POPULAR POSITION• JUSTICE HUGO BLACK

• TOTAL INCORPORATION PLUS• ENTIRE BILL OF RIGHTS AND UNSPECIFIED RIGHTS ARE ALL

APPLICABLE TO STATE GOVERNMENTS• WHEN EXAMINED, BILL OF RIGHTS CREATE OTHER INDIVIDUAL

RIGHTS• JUSTICE WILLIAM DOUGLAS

INCORPORATION

• FUNDAMENTAL RIGHTS/ORDERED LIBERTY• NO NECESSARY RELATIONSHIP BETWEEN DUE PROCESS

CLAUSE AND BILL OF RIGHTS• DUE PROCESS CLAUSE HAS INDEPENDENT MEANING THAT

PROHIBITS STATES FROM VIOLATING RIGHTS• JUSTICES MUST CONSIDER “TOTALITY OF CIRCUMSTANCES”

TO DETERMINE WHAT RIGHTS ARE FUNDAMENTAL• JUSTICE FELIX FRANKFURTER

INCORPORATION

• SELECTIVE INCORPORATION• MOST PROMINENT I COURTS• COMBINES ASPECTS OF TOTAL INCORPORATION AND

FUNDAMENTAL RIGHTS• FAVORS PIECEMEAL, GRADUAL, AND SELECTIVE INCORPORATION• LED TO VIRTUALLY EVERY RIGHT IN BILL OF RIGHTS BEING

INCORPORATED INTO DUE PROCESS CLAUSE• EXCEPT RIGHTS TO GRAND JURY INDICTMENTS AND PROTECTION OF

EXCESSIVE BAIL• JUSTICE WILLIAM BRENNAN

JUDICIAL REVIEW

• POWER OF COURT TO EXAMINE LAW AND DETERMINE ITS CONSTITUTIONALITY

• NOT SPECIFICALLY MENTIONED IN CONSTITUTION• IT IS JUDGE-MADE LAW

• RESULT OF MARBURY V. MADISON (1803)• COURT DID NOT USE AGAIN UNTIL 1857

• DRED SCOTT V. SANDFORD (1857)

THE PROCESS OF AMENDING THE CONSTITUTION

• ONLY TWO WAYS TO CHANGE OR OVERRULE SUPREME COURT DECISION:• TWO-THIRDS OF BOTH HOUSES MUST PASS RESOLUTION CALLING

FOR AN AMENDMENT• MUST BE RATIFIED BY THREE-FOURTHS OF ALL STATES WITHIN SEVEN

YEARS• TWO-THIRDS OF STATES MUST CALL FOR CONVENTION AT WHICH

AN AMENDMENT IS PROPOSED• ALL TWENTY-SEVEN HAVE BEEN PASSED VIA THE FIRST

PROCESS

THE PROCESS OF AMENDING THE CONSTITUTION

• CHISOLM V. GEORGIA (1793)• VERY FIRST CONSTITUTIONAL DECISION BY SUPREME

COURT• LED TO PASSING OF ELEVENTH AMENDMENT• RULED STATES WERE SUBJECT TO JURISDICTION OF UNITED

STATES SUPREME COURT AND FEDERAL GOVERNMENT• MANY STATES OBJECTED TO RULING