Rosenfeld Sp06 ConLawII Outline1

Rosenfeld Sp06 ConLawII Outline1 - Con...

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View Full Document Right Arrow Icon Con Law II – Outline Spring 2006 Professor Rosenfeld Page 1 of 18 – by Avital Gopas ConLawIIRosOutline1.pdf Con Law II Outline In the 1787 const there was no mention of ind rights, until in 1791 the bill of rights was ratified. 2 reasons: o State’s were meant to take care of it since the govt couldn’t by definition infringe on ind rights. o Due to the anglo-american paradigm that viewed rights as negative (state can restrict) Vs. European view that considered them to be positive and enumerated otherwise nonexistent. In the original const there were 4 so called “individual rights”: o Habeas Corpus: A right to my body: forces the govt to justify detaining a person. Against Fed Govt – article 1. o No bill of attainder- a piece of legislation passed for one person – against fed govt (art 1) and states (art 2) o Ex-post facto law- to make an action illegal after the fact. Against fed govt (art 1) and states (art 2). o Impairment of right to contract. Against the states (art 2). After the Civil War, the Bill of Rights was amended to include the 13 th A being the only right to apply to private conduct prohibiting slavery. And the 14 th amendment applying these rights to the states. Where an individual asserts a claim based on a federally given right it serves to limit state power and vice versa. Incorporation of the Bill of rights : Does the Bill of Rights Apply to the states wholly, partially or not at all through the 14 th A? no state shall deprive a citizen the p & I, dp, ep. o Marshall- Not at all (prior to 14 th A): Barron v. Mayor of Baltimore : City destroyed B’s wharf and didn’t pay for it. State doesn’t have to pay under the 5 th a takings clause bc Marshall says that the bill of rights was created as a check on the fed govt only and doesn’t apply to the states. s Doesn’t this render the 10 th A superfluous? Obviously then the bill of rights applies only to the fed govt. Marshall’s ans: 10 th A concerns the rest of the const, not the bill of rights. s Had Barron come up after 14 th A had been passed, he would have gotten paid. o Partial Incorporationism : incorporate whichever rights our traditional societal notions of justice and fair play require. s Palko v . CT : Cardozo decided that a law allowing a state ct to retry a criminal defendant does not violate the 5 th A via the 14 th A. Only a right that is ranked as fundamental belonging to “the essence of the scheme of ordered liberty” would violate it, and the prevention of double jeopardy on a state level isn’t fundamental. In 1969 the SC reversed it and decided prevention of double jeopardy on a state level is fundamental, but still partial inc. s
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This note was uploaded on 02/14/2008 for the course LAW 7502 taught by Professor Adams during the Spring '07 term at Yeshiva.

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Rosenfeld Sp06 ConLawII Outline1 - Con...

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