McGinnis - Fall 2001 Con Law II

McGinnis Fall - ASSIGNMENT 1 417-432 CHAPTER 7 THE BILL OF RIGHTS AND THE POST-CIVIL WAR AMENDMENTS"FUNDAMENTAL PROCEDURAL RIGHTS AND

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ASSIGNMENT 1, 417-432 CHAPTER 7: THE BILL OF RIGHTS AND THE POST-CIVIL WAR AMENDMENTS: “FUNDAMENTAL PROCEDURAL RIGHTS AND THE “INCORPORATION” DISPUTE. INTRODUCTION --14 th Amendment Due Process Clause HAS BEEN READ to make applicable to state criminal proceedings virtually all of the procedural requirements that govern federal criminal law enforcement as a result of the Bill of Rights. --Post Civil War amendments signified a major escalation in the national concern with the protection of individual rights form state gov. action. --14 th Amendment due process clause becomes major vehicle for NATIONALIZATION OF INDIVIDUAL RIGHTS. SECTION 1. The Pre-Civil War Situation. 1787 document. Relatively few explicit references to individual rights in original document. Bill of Rights. Ratification debates reveals that there is a widespread demand for additional constitutional protection. BARRON v. MAYOR AND CITY COUNCIL OF BALTIMORE. (1833) FACTS: Barron sues city for damaging his wharf. Trial court awards Barron $45,000. Appellate reverses. Barron claimed that the state’s action violated the 5 th Amendment guarantee that private property would not be taken for public use, without just compensation. Bill of Rights restricts only the national government. Before the Civil War, the constitution afforded individuals very limited protection against state action. SECTION 2. THE PURPOSE AND IMPACT OF THE POST CIVIL WAR AMENDMENTS Nationalization— 1-growth of substantive due process. 2-selective incorporation.
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SLAUGHTER-HOUSE CASES (1873) FACTS: A LA law of 1869 charters a corporation, and granted it a 25 year monopoly to maintain slaughterhouses. All competing facilities are required to close. Independent butchers can work in there for a fee. Butchers not included claimed that 1-the law denied them the right to “EXERCISE THEIR TRADE” and made 13 th and 14 th amendment challenges. REASONING: The state is exercising police power. This is an important law, but did it exceed the state’s power? 13 th amendment argument—did it create an involuntary servitude? 14 th amendment—1-denied equal protection, 2-derpived them of property with out due process, 3-abridged their privileges and immunities. 13 th amendment clearly refers to slavery. After the 13 th is passed, blacks are hindered by unfair laws. Look to the purpose of the law. The first section of the 14 th Amendment overturns Dred Scot and makes all persons born in US and subject to its jurisdiction, US citizens. P & I protects US citizen rights. The constitution states that the citizens of each state shall be entitled to the P& I’s of citizens of several sates. What are these? 1-protection by the government, 2-acquire, possess property, 3-pursue and obtain happiness and safety. State governments are meant to protect these rights. DISSENT—The question here is whether the recent amendments protect US citizens
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This note was uploaded on 02/14/2008 for the course LAW 7502 taught by Professor Adams during the Fall '07 term at Yeshiva.

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McGinnis Fall - ASSIGNMENT 1 417-432 CHAPTER 7 THE BILL OF RIGHTS AND THE POST-CIVIL WAR AMENDMENTS"FUNDAMENTAL PROCEDURAL RIGHTS AND

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