essay question 4

essay question 4 - Describe and assess the Supreme Courts...

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Describe and assess the Supreme Court’s development of “substantive due process” doctrine over the past century. In your view, is the Court open to the criticism that is continues to “Lochernize” in this arena even today? Legal scholars debated incorporation of the Bill of Rights to be applicable to the states. In Twining, the courts for the first time articulated a position that opened the door to the future application of some Bill of Rights provisions. The Court stated that some of the personal rights safeguarded by the first eight Amendments against the Nation may also be safeguarded against state action, because denial of them would be a denial of the due process of law. They would be safeguarded not because they are enumerated in the Bill of Rights, but because they are of such a nature, fundamental rights, that they are included in the conception of the due process of law. The Court took the stance that they would not incorporate the entire Bill of rights, but will consider rights individually when necessary. In Palko, the court determined that the right to protection against double jeopardy was not fundamental, deriving the definition that fundamental rights as those without which liberty and justice could not exist, rights that were implicit in the concept of ordered liberty. The courts adopted the doctrine of “selective incorporation”, determining what rights were fundamental on a case-by-case basis. The Court initially only
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This note was uploaded on 03/26/2012 for the course POL 353 taught by Professor Dameron during the Fall '11 term at Miami University.

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essay question 4 - Describe and assess the Supreme Courts...

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