Outline-cheryl

Outline-cheryl - -In the Original Constitution before it...

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-In the Original Constitution, before it was amended, there were relatively few individual constitutional rights; most are in the bill of right. Why? 1) Unnecessary to place a substantial number of individual rights in original constitution because federal constitution was one of limited powers 2) Not a great need to articulate the needs of individual rights 3) Fearful that if it did enumerate individual rights, it would be interpreted as an exclusive listing of rights and lead to denial of other rights. -There are some individual rights in the original constitution: 1) Privileges and Immunities Clause - Article 4 Says that states may not discriminate against out of staters with respect to P and I. The most prominent P an I is the right to earn a living. 2) Suspension Clause Article I, section 9 Privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it. What is a writ of habeas corpus? Habeas corpus proceeding is a vehicle to test the legality of government custody of an individual. Habeas corpus is the remedy when the government takes an individual’s physical custody (incarceration) and the vehicle to test the legality. Fed government can’t suspend the availability of fed habeas corpus but congress has very broad authority to regulate the use of habeas corpus proceeding. (I.e.- Congress requires that state prisoners first exhaust state remedies) 3) Contracts Clause - Article I, section 2 Prohibits the states from impairing the obligation of contracts. ONLY applies to the state government, not federal government . Provides potential protection to economic interests. Article I, section 9-Prohibits federal government from passing ex post facto laws or bill of attainder. Article I, Section 10-Same prohibition with respect to the states. No states shall pass any bills of attainder or ex post facto law. Ex Post Facto -A statute that takes conduct that was innocent when it happened, and it retroactively makes that conduct a crime. Hypo - A student didn’t brief all cases in con law I, but it wasn’t a crime. NY state legislative at the end of the semester makes it a crime to not brief cases. NY further says if you didn’t brief last semester, it’s a felony also. Retroactively taking conduct that was lawful when it was engaged in, and now making it a crime. Notice factor - If legislative will criminalize particular conduct, they should give notice of what conduct is criminal to individuals. Also prohibits the legislative from retroactively increasing the penalty of the conduct (i.e.- not briefing cases used to be a misdemeanor and now they make it a felony) Once again there is a notice problem. Retroactively eliminating a defense - Lets say we have a crime of not briefing cases…but there has been attached to this crime, a defense (i.e.-being drunk!) 1
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Let’s say the legislative decides that everyone has raised this defense so they eliminate it, and do so retroactively. S.C. says this also is an unconstitutional ex
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