Crim Pro Investigative Fall 2006 Ramsey

Crim Pro Investigative Fall 2006 Ramsey - Crim Pro Outline...

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Crim Pro Outline basic notion: in hierarchy of 4A values, privacy and sanctity of home rank very high 14A and the BoR - Total Incorporation – apply first 8 Amendments to states through DPC of 14A; o If feds can’t do it, then sts shouldn’t be allowed to (D’s arg in Palko ) o - Fundamental Rights (“ordered liberty”) – certain rts are fundamental o Black: thinks coercive on sts, means CT can strike down st laws w/o having to consult BoR-? o Determination is broad o Inherent in our concept of ordered liberty ( Palko ), essential to concept of ordered liberty, a civilized society cannot function w/o it “fundamental to the American scheme of justice” ( Duncan ) o Elastic nature – may allow rts not in BoR o Sources: natural law (Frankfurter in Adamson ) history and traditions (Frankfurter in Adamson ) DPC of 14A has independent potency (Frankfurter) text (Frankfurter in Adamson ) or it could just be judicial caprice - fund. rts are just whatever the justices say they are o Eg: Right to privacy (????) - Total Incorporation Plus (Murphy in Adamson ) – all rts in BoR apply to the states, plus there may be more rts that are fundamental, BoR is not exhaustive o Gives pwr to judges, doesn’t really have philosophical coherence ( might be cohesiveness in idea that BoR will set standard) o allows for flexibility – can guarantee rts in evolutionary way, less limitations that other views o Con: allows for judicial activism, judges can just make the rts they want fundamental, base on own morals and views (which might be diff from population’s) - Selective Incorporation (Duncan) – allow some rts from BoR o Combines aspects of “fund rts” and “total incorporation” approaches accepts basic premise that 14A inc only rts that are “of very essence of ordered liberty,” but recognizes not all rts enumerated in BoR are fundamental and some fund rts might not be in BoR *looks more to what is fundamental to the Am system of justice and less to natural law, so the BoRs would seem to be the place to look – this results in an ad hoc sort of way of achieving what Black wanted under Total Incorp o Duncan - - “jot-for-jot” approach – all ancillary rts should attach o req’s cts to look at total rt guaranteed by BoR provision, not just single aspect of that rt or application of that aspect in the case before it Views of Justices - Cardozo: fund rts guaranteed to all, applies to fed and st, BUT distinct from what’s in BoR (Palko ) - Frankfurter: 14A does NOT apply BoR to sts b/c at time of ratification of 14A the sts did not all comply w/ BoR in crim pro, nothing in text of 14A implies incopr. Fund rts come from natural law (just exists, will of people) - Black: sts are disadvantaged by fund law approach b/c cts can look outside BoR for find rts o Relied on hx: said drafters intended 14A to inc BoR [weak arg-hx shows 14A to bring rouge sts of S into line] o Said so in Adamson (where Douglas jointed his dissent)
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Crim Pro Investigative Fall 2006 Ramsey - Crim Pro Outline...

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