Amendments IV, V, VI, and XIV- Doctrinal debates regarding how the IV, V, VI apply to states through XVI.
Ct- pretty liberal, against law enforcement.
ct- retreat from the liberal view of the Warren ct.
ct- move to the right, in favor of law enforcement.
ct- probably close to the Rehnquist ct.
TWO Conflicting Perspectives
—One “Swiss cheese” result
Am Reasonableness Clause-
Scalia & White
- No one truly believes that a warrant is always
required- there must be exceptions for extenuating circumstances, consent, plain view, etc.
Marshall & Brennan
- warrant req is not a high standard- 4
am is supposed to prevent
police misconduct, not simply redress it
neutral judge is needed for the initial determination of the need to
intrude in one’s privacy—Reasonableness standard is inherently vague & unpredictable.
Swiss cheese-wholes through the 4
Am warrant req with exceptions for reasonableness.
TWO Types of Rules
Bright line rules
- favored in search/seizure cases for clarity of law enforcement, burden on cts, etc.
- flexible; per se rule too expansive and stiff.
SC does NOT accept the
Inc reading of the 14
Amend, BUT in the 60’s, Warren CT
specific provisions of BOR in the 14
A only requires states to recognize fund rights; If system still stands after taking away right, then its
: ad hoc, subjective/personal application of 14
A by elitist judges.
am has indep potency (
) BOR talks about fund rights- maybe not all in BOR and others outside of BOR are
fund. Historical args stronger-
. No need for a necessary rel between 14
and BOR – DPC simply incorp
principles implicit in concept of ordered liberty and deeply rooted in traditions.
am, proc safeguards included in BOR were said to be applicable to the states if they were “implicit in the concept
of ordered liberty,” “if a fair and enlightened system of justice would be impossible without them.” (
said that “state criminal processes are not imaginary and theoretical schemes but actual systems
bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and
Q is whether given this kind of system a particular procedure is fundamental – whether, that is, a procedure is
necessary to an Anglo-American regime of ordered liberty.”
Fund rights- 14th Am, proc safeguards included in BOR were said to be applicable to the states if implicit in the
concept of ordered liberty,” “if a fair and enlightened system of justice would be impossible w/o them.-