Law and Justice Chapter 3 power point

1. MAKING LAW
CHAPTER 3

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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”

9. 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

10. 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

11. WILLIAM BLACKSTONE
• HAD TREMENDOUS INFLUENCE ON FOUNDING FATHERS
• INFLUENTIAL ON PHILOSOPHY BEHIND DECLARATION OF
INDEPENDENCE
• PHRASES SUCH AS “SELF-EVIDENT” AND “UNALIENABLE
RIGHTS”

12. SOURCES OF LAW
• JUDGE-MADE LAW (COMMON LAW)
• LEGISLATIVE LAW
• CONSTITUTION
• STATUTES
• ORDINANCES
• ADMINISTRATIVE REGULATIONS
• OTHER SOURCES OF APPROPRIATE CONDUCT
• RELIGION AND ETHICS

13. SOURCES OF LAW
Constitution
(Constitutional Law)
Legislative
Statutes( )
Executive Agency
(Administrative Law)
Judicial Cases
(Common Law)

14. 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

15. 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

16. 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

17. SOURCES OF INDIVIDUAL RIGHTS
• INDIVIDUAL RIGHTS DEFINED
• SEVERAL SOURCES
• FEDERAL AND STATE CONSTITUTIONS
• CASE LAW
• COURT RULES
• LEGISLATION

18. 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

19. 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

20. 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

21. 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.

22. THE FIRST AMENDMENT:
FREEDOM OF RELIGION
1. GOVERNMENT SHALL NOT ESTABLISH A RELIGION
2. 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”

23. THE FIRST AMENDMENT:
FREEDOM OF RELIGION
• LEMON V. KURTZMAN (1971)
• GOVERNMENT CAN BE INVOLVED IN RELIGION IF:
1. STATE HAS A SECULAR PURPOSE
2. PRIMARY PURPOSE OF STATUTE MUST BE NEITHER PRO-
NOR ANTI-RELIGION
3. STATE DOES NOT FOSTER EXCESSIVE GOVERNMENT
ENTANGLEMENT WITH RELIGION
• VALID GOVERNMENT REGULATIONS ARE PERMITTED

24. 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

25. 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

26. 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.

27. 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

28. 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.

29. THE THIRD AMENDMENT
• WAS PRODUCT OF ITS TIMES
• MAKES PRACTICE OF HOUSING SOLDIERS IN PRIVATE
HOMES OF INDIVIDUALS UNCONSTITUTIONAL

30. 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.

31. 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”

32. 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.

33. 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

34. 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

35. 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

36. THE FIFTH AMENDMENT:
DOUBLE JEOPARDY
• MEANS THAT A JURISDICTION MAY NOT:
1. PROSECUTE SOMEONE AGAIN FOR THE SAME CRIME
AFTER THE PERSON HAS BEEN ACQUITTED
2. PROSECUTE SOMEONE AGAIN FOR THE SAME CRIME
AFTER THE PERSON HAS BEEN CONVICTED
3. PUNISH SOMEONE TWICE FOR THE SAME OFFENSE

37. THE FIFTH AMENDMENT:
DOUBLE JEOPARDY
DOES NOT MEAN THAT:
1. STATE MAY NOT TRY SOMEONE AGAIN IF FIRST TRIAL
ENDS IN MISTRIAL OR HUNG JURY
2. STATE CANNOT RETRY SOMEONE IF CONVICTION WAS
OVERTURNED ON APPEAL
3. PERSON CANNOT BE TRIED UNDER DOCTRINE OF DUAL
SOVEREIGNTY

38. 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

39. 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)

40. 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.

41. 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

42. 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

43. 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

44. 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)

45. 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

46. 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.

47. 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

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

49. 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

50. THE EIGHTH AMENDMENT:
CRUEL AND UNUSUAL
PUNISHMENTS
• PROHIBITS TORTURE
• PROHIBITS PUNISHMENT DISPROPORTIONATE TO
OFFENSE
• DOES NOT PROHIBIT DEATH PENALTY

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

52. 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)

53. 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.

54. 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

55. 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

56. 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.

57. 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

58. 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.

59. 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

60. 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

61. 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

62. 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

63. 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

64. 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

65. 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

66. 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

67. INCORPORATION
• DEFINED
• FOUR SCHOOLS OF THOUGHT
• TOTAL INCORPORATION
• TOTAL INCORPORATION PLUS
• FUNDAMENTAL RIGHTS/ORDERED LIBERTY
• SELECTIVE INCORPORATION

68. 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

69. 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

70. 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

71. 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)

72. 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

73. 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