This document provides notes and assignments for a government team on topics related to due process and equal protection under the law. It includes: - Notes on procedural due process, substantive due process, and the incorporation of protections from the Bill of Rights to the states via the 14th Amendment. - Assignments analyzing landmark Supreme Court cases that developed these legal concepts, such as Lochner v. New York, Gitlow v. New York, and Roe v. Wade. - Notes on the equal protection clause and the three levels of scrutiny used to analyze unequal treatment. - Assignments analyzing equal protection cases like Korematsu v. US and US v. Virginia. - An assignment to prepare oral

1. Welcome Gov Team! Boot up, Lids down. Date: 09/21/09 , Topic: Due Process + Equal Protection Think of items to discuss. Announcements:

2. Gov Team Agenda 1) Due Process and SDP Moot Courts 3) Equal Protection and EPC Moot Courts 3) Boumediene v. Bush Moot Court 4) Sullivan v Florida Moot Court Unit To Dos 1) 2 nd Question Due Monday 9/28 Reminder 1) Look over unit digital files! 2) Help Sam with sweat shirt ideas U3vU6 U1vU5 U2vU4

3. Notes #14a , Title: “ Due Process Notes ” 1) Constitution A1: Congress A1S8C1: Tax + Spend A2: President A3: Fed Courts A1S8C3 Interst. Commer. Veto + carrying out laws Ex Orders + Sign. Statements Judicial Review Subst. DP

4. Rule of Law (but NASCAR style)

5. Notes #14a , Title: “ Due Process Notes ” 2) Due Process (DP) : Legal concept that gov must respect your legal rights ( Magna Carta ). 3) Procedural Due Process : Legal concept that gov must follow pre-determined steps ( accepted ) 4) Substantive Due Process : Legal concept that the content of the law may not take way fundamental liberty ( strict int. reject S DP ) Lochner v. NY (1905) > Roe v. Wade (1973) 5) Fundamental Liberty : Bill of Rights (accepted), personal privacy: body + family issues (st int reject) 6) 5 th Amendment (1791) : Along with other things, 5 says federal gov must give you DP. 7) 14 th Amendment (1868) : Along with other things, 14 says states must give you DP. 8) Selective Incorporation : Courts over series of cases order states to obey S DP (parts of BOR > personal privacy) 1: Gitlow v. NY (1925) 6: Gideon v. Wainwright (1963)

6. Notes #14a , Title: “ Due Process Notes ” 2) Due Process (DP) : Legal concept that gov must respect your legal rights ( Magna Carta ).

7. Notes #14a , Title: “ Due Process Notes ” 3) Procedural Due Process : Legal concept that gov must follow pre-determined steps ( accepted ) 4) Substantive Due Process : Legal concept that the content of the law may not take way fundamental liberty ( strict int. reject S DP ) Lochner v. NY (1905) > Roe v. Wade (1973)

8. Notes #14a , Title: “ Due Process Notes ” 5) Fundamental Liberty : Bill of Rights (accepted), personal privacy: body + family issues (st int reject)

9. Notes #14b , Title: “ Due Process Notes ” 6) 5 th Amendment (1791) : Along with other things, 5 says federal gov must give you DP. 7) 14 th Amendment (1868) : Along with other things, 14 says states must give you DP ( leading to incorporation )

10. 5 th Amendment (1791) : 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 a) Only accused can refuse to talk ( self-incrim ) b) Fed gov protect procedural+substantive DP c) Gov force you to sell to it your property, it can re-sell for common good ( eminent domain )

11. 14 th Amendment (1868) : All persons born or naturalized… are 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… equal protection of the laws. a) Ppl born here are citizens b) States protect procedural+substantive DP c) States give everyone equal treatment Reverse incorporation : 5 th SDP say Fed must give equal protection for all ppl too.

12. Notes #14b , Title: “ Due Process Notes ” 8) Selective Incorporation : Extending parts of the BOR to states case by case thru 14th ( P+S DP ). 1: Gitlow v. NY (1925) 6: Gideon v. Wainwright (1963) 2 nd Amend. has not yet been incorporated.

13. 8) Title: DP Flow Chart Fed must follow BOR (5 th ) 14 th A passes saying states must give due process (PDP>SDP) Courts begin incorporating parts of the BOR, some thru PDP, some thru SDP Courts then expand SDP to include personal privacy, the substance of laws can’t deny personal privacy (Lochnerizing)

14. What power judges should have? PDP: Just make sure govs (state/fed) follows the right steps (esp crime/trials) SDP-Lite Just make sure that govs (state/fed) don’t violate BOR SDP (precedent): Make sure govs (state/fed) don’t violate what court decide are fund. liberties.

15. Notes #14a , Title: “ Due Process Notes ” 9) Strict Scrutiny : No right absolute, over series of cases, legal test to take way fund freedom: a) Gov has a compelling reason b) Only way possible c) Done in the most narrow means (We will see strict scrutiny again as a 3 level test when it comes to equal protection of the law)

16. Work #14a , Title “ Lochner v. NY (1905) ” With a partner or unit, case summary : 1) Synthesis of the facts of the case 2) Synthesis of the issue statement 3) Synthesis of the majority and dissenting holdings 4) Create own oral legal argument for your side 14 th Amendment: “ shall any State deprive any person of life, liberty, or property, without due process of law” Strict Scrutiny : a) Gov has a compelling reason b) Only way possible c) Done in the most narrow means

17. Work #14b , Title “ Gitlow v. NY (1925) ” With a partner or unit, case summary : 1) Synthesis of the facts of the case 2) Synthesis of the issue statement 3) Synthesis of the majority and dissenting holdings 4) Create own oral legal argument for your side 14 th Amendment: “ shall any State deprive any person of life, liberty, or property, without due process of law” Strict Scrutiny : a) Gov has a compelling reason b) Only way possible c) Done in the most narrow means

18. Work #14c , Title “ Roe v. Wade (1973) ” With a partner or unit, case summary : 1) Synthesis of the facts of the case 2) Synthesis of the issue statement 3) Synthesis of the majority and dissenting holdings 4) Create own oral legal argument for your side 14 th Amendment: “ shall any State deprive any person of life, liberty, or property, without due process of law” Strict Scrutiny : a) Gov has a compelling reason b) Only way possible c) Done in the most narrow means

19. 14 th Amendment (1868) : All persons born or naturalized… are 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… equal protection of the laws. a) Ppl born here are citizens b) States protect procedural+substantive DP c) States give everyone equal treatment Reverse incorporation : 5 th SDP say Fed must give equal protection for all ppl too.

20. Notes #15a , Title: “ Equal Protection Notes ” 1) Equal Protection Clause (EPC) : 14 th says states must treat everyone equally (14: Civil War). Reverse incorporated to also mean Fed must EPC ( Bolling v Sharpe, 1954 ) Brown v. Board I (1954) > Ricci vs. De Stefano (2009) Note: 14 th A’s EPC only applies to state/local govs, not private biz, which is why Civ Rights Act of 64 used ICC

21. Notes #15a , Title: “ Equal Protection Notes ” 2) Gov Can Treat People Unequally - 3 Levels Test: 1) Strict Scrutiny (Compelling Test) Applies to: Race, religion, political access, “fund. rights” Gov has to prove compelling gov interest, the action is only way, and is most narrowly done. 2) Middle Tier Scrutiny (Important Test) Applied to: Gender Gov has to prove important gov interest. 3) Minimal Scrutiny (Rational Test) applied to: Commercial activity, children’s rights Need to have a rational reason.

22. Work #15a , Title “ Korematsu v US (1944) ” With a partner or unit, case summary : 1) Synthesis of the facts of the case 2) Synthesis of the issue statement 3) Synthesis of the majority and dissenting holdings 4) Create own oral legal argument for your side 14 th Amendment: “ No State shall...deny to any person within its jurisdiction the equal protection of the laws.” Strict Scrutiny : a) Gov has a compelling reason b) Only way possible c) Done in the most narrow means

23. Work #15b , Title “ US v Virginia (1996) ” With a partner or unit, case summary : 1) Synthesis of the facts of the case 2) Synthesis of the issue statement 3) Synthesis of the majority and dissenting holdings 4) Create own oral legal argument for your side 14 th Amendment: “ No State shall...deny to any person within its jurisdiction the equal protection of the laws.” Middle Tier Scrutiny (Important Test): Does the government (this case, VA) have an important interest in this issue.

24. Work #15c , Title “ Grutter v Bollinger (2003) ” With a partner or unit, case summary : 1) Synthesis of the facts of the case 2) Synthesis of the issue statement 3) Synthesis of the majority and dissenting holdings 4) Create own oral legal argument for your side 14 th Amendment: “ No State shall...deny to any person within its jurisdiction the equal protection of the laws.” Strict Scrutiny : a) Gov has a compelling reason b) Only way possible c) Done in the most narrow means

25. Fall Book: NY Times Book of the Year Cost: $10 Goal: by Block Day We are trying to get him to come speak to our class in March.

26. Archivist sets up a Pbworks for your unit. 1) Share with your group 2) Create a “Boumediene” page. 3) Divide your research and post your findings to the group’s pbworks (links, files) and text. Consider using Pbworks with your group for comp research. It is used by many companies as a way to create synergy at work!

27. Work #16a , Title “ Boumediene v. Bush (2008) ” U1+6: Art 1, S9 , U2+4: Am5 , U3+5 : Am6 1) Read over case brief and start net research to create your unit oral argument using precedent . Article 1, Section 9 : Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law . Amendment 5 : Nor be deprived of life, liberty, or property, without due process of law. Amendment 6 : In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, and to have the Assistance of Counsel for his defense.

28. Work #17a , Title “ Florida v. Sullivan (2008) ” U1+5: Am8 , U2+4: 14 th P-DP , U3+6 : 14 th -EPC This is our UC Hastings moot court case : 1) Synthesis of the facts of the case 2) Synthesis of the issue statement 3) Synthesis of the majority and dissenting holdings 4) Read briefs, amicus, & research law + precedent. Amendment 8: “ Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 14 th Amendment-P-DP: “ No State shall...deny to any person within its jurisdiction the equal protection of the laws.” 14 th Amendment-EPC: “ No State shall...deny to any person within its jurisdiction the equal protection of the laws.” This is a real case, real ppl still waiting to be heard by SCOTUS (11/09)

29. Gov Team Agenda 1) Due Process and SDP Moot Courts 3) Equal Protection and EPC Moot Courts 3) Boumediene v. Bush Moot Court 4) Sullivan v Florida Moot Court Unit To Dos 1) 2 nd Question Due Monday 9/28 Reminder 1) Look over unit digital files! 2) Help Sam with sweat shirt ideas U3vU6 U1vU5 U2vU4