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PoliSci - Civil Liberties

PoliSci - Civil Liberties - Civil Liberties January 26th...

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Civil Liberties January 26 th – 30 th CIVIL LIBERTIES Incorporation of the Bill of Rights: Does the BoR protect citizens against violations of their rights by the state/local governments? Is it the national gov’s job to step in and protect these rights when state/local gov’s do intrude? The extension of this protection took years (making it an issue of federalism). Rights include 1 st , 4 th , 5 th , (eventually 14 th ) – main ones to study First: freedoms (speech, petition, press, religion, assembly), “establishment clause” and “free exercise clause” 4 th : Searches and seizures (warrants) 5 th : Indictment to be held by grand jury (unless in the army), double jeopardy, self- incrimination, due process of law, eminent domain BoR made to satisfy the anit-feds concerned with a too-strong national Government and will not protect individual rights. At the time, little fear of state govs imposing on their rights. States/localities are much more likely to infringe on rights since national government must cater to a much broader set of inteterest. 1833 – Barron v. Baltimore Warf became too shallow to use (being deprived of property) without due process of law, sued under 5 th amendment. Marshall: BoR applies to national but not state government. 1857 – Dred Scott v. Sandford federal power of slaves in a territory. What are fed protections of citizens against state govs. 1846, sues for his freedom and wins at lower state level, but appeals court deem Wisconsin’s free state standing an unaffecting upon Missouri laws. 1854, suit brought to fed court. Chief justice Tawney rules that since he’s a citizen in a state vs the us, he couldn’t sue. However, at the time, other ex-slaves/black men were already given citizen rights in many other states. Tawney distinguishes between state and national citizenry, articulating a doctrine of dual citizenship, thus not entitled to due process (a national right). The doctrine of vesture interest (strengthens due process and the 5 th amendment to protect Sanford, not scott, providing substantive coverage instead of just procedural, arguing for the rights of property). 5 th -a means of preventing legislative ruling concerning the rights of property. BoR not being extended to protect rights of citizens under states.
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January 26 th Does fed gov have ability to protect individuals if states restrict state rights? No, initially it did not. 14 th amendment – all born/naturalized in us are citizens of the us, decrees no state can abridge national rights, nor shall any state deprive any citizen of life, liberty, or property or due process of law or equal protection of the law. 1873 – slaughterhouse cases question 14 th meaning Monopoly of slaughterhouse in LA uses the state laws claiming to protect safety by outlawing all other slaughterhouses. Smaller slaughterhouses sue in supreme court; this denial is a violation of the 14 th amendment and a failure to provide due process and argue equal protection. Argue its only a civil rights law, and doesn’t help the small companies.
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