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Outline_Jess

Outline_Jess - I Bill of Rights and Incorporation o The...

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I. Bill of Rights and Incorporation o The original Constitution (meaning before it was amended) had a few individual constitutional rights. o The bulk of the individual const rights are in the Bill of Rights (BOR), or the first 10 amendments). o In original const there are some individual constitutional rights: 1) Privileges and immunities clause of article 4 i) Says that states may not discriminate against out of staters with respect to the privileges and immunities (right to earn a living). ii) When the const says states can’t discriminate against oos, the prohibition against state discrimination turns into an individual right. Oos have the right to be free of this kind of discrimination. 2) Article 1 Section 9, says the privilege of writ of habeus corpus can’t be suspended unless, when in cases of rebellion or invasion, the public safety may require it. i) A writ of habeus corpus is a vehicle to test the legality of govt custody of an individual. ii) When govt takes physical custody, habeus corpus is the remedy for testing out the legality of that custody by the government. iii) Cong has required that fed courts give deference to the determinations given to state courts concerning prisoners in state court system. 3) Article 1 Section 2, states the contracts clause which prohibits states from impairing the obligation of contracts. i) This deals with state and local govt, as there is no provision in const that prohibits fed govt from impairing the obligation of contracts. ii) The contracts clause is one part of the constitution that provides potential protection of economic interest. 4) Article 1 Section 9 prohibits fed govt from enacting bills of attainder and ex post facto laws. 5) Article 1 Section 10 contains the same prohibition with respect to the states. (A) Ex post facto laws o An ex post facto law is a statute that takes conduct that was innocent when conduct engaged in and retroactively makes it a crime. o Ex: we have a student who didn’t brief all of his con law cases in con law I. It wasn’t a crime then. Then NYS legislature passes a law that makes it a felony. There is no problem with conduct after the statute but the NYS legislature says that conduct is deemed to be a felony if it was engaged in one year before the enactment of the statute. NYS is retroactively taking a lawful conduct and making it a criminal offense. This is an unconstitutional ex post facto law. o There is a notice concept here that if the legislature is going to criminalize particular conduct, they need to give notice as to what is and is not criminal.
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o This also prohibits legislature from retroactively increasing the penalty . o Ex: not briefing a case is a misdemeanor. Now the NYS legislature makes it a felony and increases the penalties and do it retroactively. Prior to the amendment, they are charged with felonies. Also a notice problem. Retroactive increasing of the penalty is also an unconstitutional ex post facto law.
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