Constitutional Law 2 Test 1

Case by Case Fairness

"due process" means assessing on a case-by-case basis whether the procedures at issue are fair

Total Incorporation Plus

"liberty" means all of the provisions of the first eight amendments and any others thought fundamental

Selective Incorporation

"liberty" means all of the provisions of the first eight amendments thought "fundamental to a scheme of ordered liberty"

Total Incorporation

"liberty" means all of the provisions of the first eight amendments, no more and no less

Selective Incorporation Cases

Cardozo in Palko noted that some Bill of Rights guarantees such as freedom of thought and speech are fundamental and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states.

Selective Incorporation Benefits/Negatives

Distinguishes between important and unimportant rights and gives firm protection to rights incorporated, but affords no protection for rights outside the Bill of Rights; lacks any historical justification, and criterion for incorporation is vague.

Duncan Brief: Name

Duncan v. Louisiana

In Duncan v. Louisiana the Court extended the 6th Amendment right to trial by jury to state action. Present your brief of the Duncan case. Discuss two other subsequent cases that clarify the concept "trial by jury." In other words, what restrictions has the Court placed on state action? Is this an effective extension of due process?

Duncan v. Louisiana, The parties to the suit were Plaintiff - Louisiana / Defendant - Duncan, The facts of the case are Gary Duncan, a black teenager in Louisiana, was found guilty of assaulting a white youth by allegedly slapping him on the elbow. Duncan was faced with a potential sentence of 2 years (sentenced 60 days). Duncan's request for a jury trial was denied because Louisiana stated that jury trial could only be warranted when hard labor or capital punishment was the potential punishment(s). The legal question raised by the case was whether the 14th Amendment extends the 6th Amendment right to a trial by jury in criminal cases to state action? The Court answered 7-2 in Duncan's favor, answering yes on the question and extended the right to trial by jury in serious criminal cases to the state action. The reasoning for this decision was that the Court held that the 6th Amendment guarantee of trial by jury in criminal cases was "fundamental to the American scheme of justice," and states were obligated under the 14th Amendment to provide such trials. Also stated that based on Common Law from Great Britain, a jury trial was meant to stop oppression by the government (if not it could lead to a trial with no jury which could be used to get rid of a government's political enemies). Also stated that Duncan's case constituted a serious criminal case because he could have faced up to two years in prison. Finally, the Court stated (obiter dicta) that petty crimes were defined as those punishable by no more than six months in prison and a $500 fine, were not subject to the jury trial provision. This part was not binding as law. Two subsequent cases in which the concept of "trial by jury" was clarified are Williams v. Florida and Apodaca v. Oregon. In Williams v. Florida, the Court clarified that in a jury trial, it was up to individual states to set the number of jurors on a jury. In Apodaca v. Oregon, the Court further clarified that a unanimous conviction by a jury was not required in criminal trials. The three aforementioned cases are not an effective extension of due process because civil rights and liberties are constantly under scrutiny by the Court because litigants feel they have been harmed by the criminal justice system. Moreover, the Court has overturned precedent in Apodaca, thus proving that there is never was "effective" extended due process if precedents are being overturned.

Duncan Brief: Facts

Gary Duncan, a black teenager in Louisiana, was found guilty of assaulting a white youth by allegedly slapping him on the elbow. Duncan was faced with a potential sentence of 2 years (sentenced 60 days). Duncan's request for a jury trial was denied because Louisiana stated that jury trial could only be warranted when hard labor or capital punishment was the potential punishment(s).

Total Incorporation Plus Benefits/Negatives

Has all of the advantages and disadvantages of total incorporation except that, while it is not static, it raises the problem of subjectivity in incorporation of rights beyond the Bill of Rights.

Ducat cites four theories of incorporation. Explain what is meant by "incorporation," and how each of the theories are relevant to it. Discuss a case which exemplifies each of the theories to show more carefully the implications of the theory (i.e., discuss four cases altogether).

Incorporation means extending the protection provided by the Bill of Rights to citizens from each state, protecting against state encroachment. The first theory of incorporation is Total Incorporation Plus, where "liberty" means all of the provisions of the first eight amendments and any others thought fundamental. This theory has all of the advantages and disadvantages of total incorporation except that, while it is not static, it raises the problem of subjectivity in the incorporation of rights beyond the Bill of Rights. A case that highlights this theory of incorporation is Justice Douglas in Griswold when he explained that the Constitution did not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. The second theory of incorporation is Total Incorporation, meaning "liberty" means all of the provisions of the first eight amendments, no more and no less. This theory provides a clear guide as to which rights are incorporated and affords firm protection for civil liberties but is very rigid, static, and costly. May be historically questionable. One example of this theory is Justice Black in Adamson, Rochin, and Griswold when he argued that the Court should not incorporate rights not specifically enumerated in the Bill of Rights, only the first 8. The third theory of incorporation is Selective Incorporation in which "liberty" means all of the provisions of the first eight amendments thought "fundamental to a scheme of ordered liberty". This theory distinguishes between important and unimportant rights and gives firm protection to rights incorporated, but affords no protection for rights outside the Bill of Rights; lacks any historical justification, and criterion for incorporation is vague. One case that is a good example of this theory is Justice Cardozo in Palko where he noted that some Bill of Rights guarantees such as freedom of thought and speech are fundamental and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. The final theory of incorporation is Case by Case Fairness w"due process" means assessing on a case-by-case basis whether the procedures at issue are fair. This theory is flexible, dynamic, and sensitive to the cost of incorporation, but can be very subjective and unpredictable, and affords inadequate protection to civil liberties. An example of this theory is Justice Frankfurter in Rochin where he evaluated the case solely on its merits snd concluded that the use of stomach-pumping to obtain evidence when conducted without the accused's consent "shocks the conscience."

Case by Case Fairness Benefits/Negatives

Is flexible, dynamic, and sensitive to the cost of incorporation, but can be very subjective and unpredictable, and affords inadequate protection to civil liberties.

Total Incorporation Cases

Justice Black in Adamson, Rochin, and Griswold argued that the Court should not incorporate rights not specifically enumerated in the Bill of Rights, only the first 8.

Total Incorporation Plus Cases

Justice Douglas in Griswold explained that the Constitution did not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy.

Case by Case Fairness Cases

Justice Frankfurter in Rochin evaluated the case solely on its merits snd concluded that the use of stomach-pumping to obtain evidence when conducted without the accused's consent "shocks the conscience"

SC original jurisdiction

Original jurisdiction for the supreme court is when they are the first and only court to hear a case. If a case arises under original jurisdiction, the Court will assign the case to a special master and they act like a trial judge and submits a report to the SC. Cases reach the Court under original jurisdiction under 2% of the time and must involve a state suing another state, cases with ambassadors, cases with the US vs a State, and a state against a citizen of another state. Finally, the Court's original jurisdiction arises under article 3 section 2 of the US Constitution. Moreover, the difference between the Court's appellate and original jurisdiction is that the original jurisdiction is in the constitution and cannot be changed without an amendment, while the appellate jurisdiction is determined by Congress and can be expanded or narrowed based on legislation.

Discuss the difference between the original jurisdiction and the appellate jurisdiction of the Supreme Court.

Original jurisdiction for the supreme court is when they are the first and only court to hear a case. If a case arises under original jurisdiction, the Court will assign the case to a special master and they act like a trial judge and submits a report to the SC. Cases reach the Court under original jurisdiction under 2% of the time and must involve a state suing another state, cases with ambassadors, cases with the US vs a State, and a state against a citizen of another state. Finally, the Court's original jurisdiction arises under article 3 section 2 of the US Constitution. Moreover, the difference between the Court's appellate and original jurisdiction is that the original jurisdiction is in the constitution and cannot be changed without an amendment, while the appellate jurisdiction is determined by Congress and can be expanded or narrowed based on legislation. The SC hears almost all of its cases (98%) on appellate jurisdiction. Most cases the Court hears they get to choose through the rule of four in which at least four justices of Court must vote to consider a case before it can be heard (vote to grant the writ before it can be issued). The court does have to hear mandatory cases in which a 3 judge panel decides, state supreme court ruling in favor of the state over the fed. Gov., and when a circuit court rules differently than another a circuit court on the same issue. If not a mandatory case, cases will almost always get to the court through a writ of certiorari.

Discuss the difference between the original jurisdiction and the appellate jurisdiction of the Supreme Court. From where does the Supreme Court get its cases? Must the Supreme Court hear all the cases brought to it?

Original jurisdiction for the supreme court is when they are the first and only court to hear a case. If a case arises under original jurisdiction, the Court will assign the case to a special master and they act like a trial judge and submits a report to the SC. Cases reach the Court under original jurisdiction under 2% of the time and must involve a state suing another state, cases with ambassadors, cases with the US vs a State, and a state against a citizen of another state. Finally, the Court's original jurisdiction arises under article 3 section 2 of the US Constitution. Moreover, the difference between the Court's appellate and original jurisdiction is that the original jurisdiction is in the constitution and cannot be changed without an amendment, while the appellate jurisdiction is determined by Congress and can be expanded or narrowed based on legislation. The SC hears almost all of its cases (98%) on appellate jurisdiction. Most cases the Court hears they get to choose through the rule of four in which at least four justices of Court must vote to consider a case before it can be heard (vote to grant the writ before it can be issued). The court does have to hear mandatory cases in which a 3 judge panel decides, state supreme court ruling in favor of the state over the fed. Gov., and when a circuit court rules differently than another a circuit court on the same issue. If not a mandatory case, cases will almost always get to the court through a writ of certiorari. The Supreme Court gets its cases from the Court of Appeals for the Armed Forces, the US Courts of Appeals, the Court of Appeals for the Federal Circuit, the FISA Court, and State Supreme Court's. The SC does not have to hear all cases that come before it and can let the next highest court's decision stand. Roughly 100-150 cases are heard out of the over 7,000 that are submitted to the SC each term. The Court abides by the rule of four where if 4 of the 9 justices agree to hear a case then it will be placed on the Court's docket.

Duncan Brief: Parties to Suit

Plaintiff - Louisiana / Defendant - Duncan

Total Incorporation Benefits/Negatives

Provides a clear guide as to which rights are incorporated and affords firm protection for civil liberties, but is very rigid, static, and costly. May be historically questionable.

When the 14th Amendment was adopted, did it adequately extend civil liberties to the inhabitants of the U.S.? Why, or why not?

The 14th Amendment did not adequately extend civil liberties to the inhabitants of the US when adopted because racism, the denial of equal justice, and segregation still persisted. Moreover, the 14th Amendment did not extend the Bill of Rights immediately to the states, it was simply used as a vehicle overtime to extend fundamental protections and liberties from the Bill of Rights.

When the Bill of Rights was adopted, did it adequately extend civil liberties to the inhabitants of the U.S.? Why, or why not?

The Bill of Rights, when adopted, did not adequately extend civil liberties to inhabitants of the US, evidenced by Barron v. Baltimore and the Slaughterhouse Cases. In the Barron case, the Court ruled that the Bill of Rights was not intended to be extended to the states, only the federal government. If the Bill of Rights adequately extended civil liberties to citizens, there would be no need to bring forth a case seeking to extend the protections to apply to actions by the state government.

Duncan Brief: Reasoning

The Court held that the 6th Amendment guarantee of trial by jury in criminal cases was "fundamental to the American scheme of justice," and states were obligated under the 14th Amendment to provide such trials. Also stated that based on Common Law from Great Britain, a jury trial was meant to stop oppression by the government (if not it could lead to a trial with no jury which could be used to get rid of a government's political enemies). Also stated that Duncan's case constituted a serious criminal case because he could have faced up to two years in prison. Finally, the Court stated (obiter dicta) that petty crimes were defined as those punishable by no more than six months in prison and a $500 fine, were not subject to the jury trial provision. This part was not binding as law.

Must the Supreme Court hear all the cases brought to it?

The SC does not have to hear all cases that come before it and can let the next highest court's decision stand. Roughly 100-150 cases are heard out of the over 7,000 that are submitted to the SC each term. The Court abides by the rule of four where if 4 of the 9 justices agree to hear a case then it will be placed on the Court's docket.

SC appellate jurisdiction

The SC hears almost all of its cases (98%) on appellate jurisdiction. Most cases the Court hears they get to choose through the rule of four in which at least four justices of Court must vote to consider a case before it can be heard (vote to grant the writ before it can be issued). The court does have to hear mandatory cases in which a 3 judge panel decides, state supreme court ruling in favor of the state over the fed. Gov., and when a circuit court rules differently than another a circuit court on the same issue. If not a mandatory case, cases will almost always get to the court through a writ of certiorari.

From where does the Supreme Court get its cases?

The Supreme Court gets its cases from the Court of Appeals for the Armed Forces, the US Courts of Appeals, the Court of Appeals for the Federal Circuit, the FISA Court, and State Supreme Court's.

Possible reasons the Bill of Rights was not included as a part of the U.S. Constitution?

The framers took their own civil liberties for granted and assumed that the government would recognize and respect them, except for specific bans on ex post facto laws and bills of attainder. / It would compound the animosity over the issue of slavery. Opponents of slavery would have been more adamant to extend civil liberties to all citizens, thus those who supported slavery would likely not approve of the Constitution, thus creating problems. / The framer's belief to leave it to the states to define civil rights and liberties for their citizens.

Duncan Brief: Decision

The legal question raised by the case was whether the 14th Amendment extends the 6th Amendment right to a trial by jury in criminal cases to state action? The Court answered 7-2 in Duncan's favor, answering yes on the question and extended the right to trial by jury in serious criminal cases to the state action.

Duncan Case + Subsequent: Is it an effective extension of due process?

The three aforementioned cases are not an effective extension of due process because civil rights and liberties are constantly under scrutiny by the Court because litigants feel they have been harmed by the criminal justice system. Moreover, the Court has overturned precedent in Apodaca, thus proving that there is never was "effective" extended due process if precedents are being overturned.

When the Constitution was adopted, the extension of civil rights and liberties was quite limited. What are some of the possible reasons that a bill of rights was not included as a part of the U.S. Constitution? When the Bill of Rights was adopted, did it adequately extend civil liberties to the inhabitants of the U.S.? Why, or why not? When the 14th Amendment was adopted, did it adequately extend civil liberties to the inhabitants of the U.S.? Why, or why not?

There are three possible reasons the framers did not include the Bill of Rights in the original Constitution. First, the framers took their own civil liberties for granted and assumed that the government would recognize and respect them, except for specific bans on ex post facto laws and bills of attainder. Second, It would compound the animosity over the issue of slavery. Opponents of slavery would have been more adamant to extend civil liberties to all citizens, thus those who supported slavery would likely not approve of the Constitution, thus creating problems. Thirds, the framer's belief to leave it to the states to define civil rights and liberties for their citizens. The Bill of Rights, when adopted, did not adequately extend civil liberties to inhabitants of the US, evidenced by Barron v. Baltimore and the Slaughterhouse Cases. In the Barron case, the Court ruled that the Bill of Rights was not intended to be extended to the states, only the federal government. If the Bill of Rights adequately extended civil liberties to citizens, there would be no need to bring forth a case seeking to extend the protections to apply to actions by the state government. The 14th Amendment did not adequately extend civil liberties to the inhabitants of the US when adopted because racism, the denial of equal justice, and segregation still persisted. Moreover, the 14th Amendment did not extend the Bill of Rights immediately to the states, it was simply used as a vehicle overtime to extend fundamental protections and liberties from the Bill of Rights.

Duncan Case Subsequent Cases

Two subsequent cases in which the concept of "trial by jury" was clarified are Williams v. Florida and Apodaca v. Oregon. In Williams v. Florida, the Court clarified that in a jury trial, it was up to individual states to set the number of jurors on a jury. In Apodaca v. Oregon, the Court further clarified that a unanimous conviction by a jury was not required in criminal trials.

What does incorporation mean?

extending the protection provided by the Bill of Rights to citizens from each state, protecting against state encroachment