Con Law 2 Sal F16.docx

C current provisions of the bill of rights that are

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c. Current provisions of the Bill of Rights that are incorporated to the states: i. First Amendment– establishment clause, free exercise, and protections of speech, press, assembly, and petition. ii. Second Amendment– right to bear arms iii. Fourth Amendment– protection against unreasonable search and seizure, warrant requirement, exclusionary rule iv. Fifth Amendment– double jeopardy, self incrimination, just compensation for takings v. Sixth Amendment– speedy and public trial by an impartial jury with notice of charges, confront witnesses, compulsory process, assistance of counsel <3 vi. Eighth Amendment– excessive bail and C&U punishment. d. If a provision of the Bill of Rights applies to the states, is its content identical as the federal provision? The Court has not consistently answered this question. i. For example, states are not required to use 12 person juries even though the feds are. Nor do state jury verdicts have to be unanimous. ii. Other than juries, the Bill of Rights provisions have been incorporated exactly as they have at the federal level. V. Procedural Due Process a. Procedural Due Process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. i. Guaranteed by both the 5th and 14th b. 3 Basic Questions: i. Has there been a deprivation? 1. What does it mean to “deprive”? 3 main issues: a. Is government negligence sufficient to create a deprivation or must there be a reckless or intentional government action? i. Answer: SCOTUS has said there must be intentional action, but has not answered other states of mind. Lower courts generally agree that deliberate indifference or recklessness is enough. But gross negligence is not enough. 6
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b. When is the government’s failure to protect a person from privately inflicted harms a deprivation? i. Generally, no duty. Two narrow exceptions: (1) where the G has limited the ability of a person to protect himself (incarceration/institutionalization); and (2) where there is a special relationship between the government and the injured individual, such as when the G took an affirmative step to put the person in danger. c. Does the availability of state remedies prevent a finding that the state has deprived due process? i. SCOTUS says yes. ii. Of life, liberty, or property? 1. “Property” a. Board of Regents v. Roth i. Facts : Wisconsin State University teacher was not rehired after his one year contract expired. He brought suit for a deprivation of property without Due Process. ii. Issue : was this a violation of Due Process rights? iii. Holding : No. 1. To determine whether Due Process requirements apply in the first place, we must look…to the nature of the interests at stake. 2. Rule : To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
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  • Spring '18
  • Government, Fourteenth Amendment to the United States Constitution

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