Constitutional law final 8/9/10/11

State police powers

The inherent power of a government to exercise reasonable control over persons and property within its jurisdiction in the interest of the general security, health, safety, morlas, and welfare except where legally prohibited.

Due process

Due process deals with the administration of justice as such, the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law.

Which amendment applies the bill of rights to the states

14th

True or flase: The right to privacy is explicitly stated in the constituion

False

The _____ test is used to determine if speech inciting illegal conduct is protected

Brandenburg

Explain the difference between the 5th amendment and the 14th amendment

The 5th Amendment protects individuals from self-incrimination and double jeopardy, ensuring due process at the federal level, while the 14th Amendment extends due process and equal protection under the law to state actions.

Selective incorporation

A constituional doctrine that protects the rights of citizens from state laws that violate their rights as defined in the bill of rights(which applies to federal law)

Eminent Domain

Refers to the power of the government to take private property and convert it into public use.

Procedural due process

A process that ensures fair procedures

Substantive due process

A princile that protects fundamental rights

Incorporation doctrine

Constituional doctrine that applies parts of the bill of rights to the states through the 14th amendment

Ordered liberty doctrine

Position that fundamental rights are not absolute but are determined by balancing of the public welfare against individual rights

What rights are protected under the 1st amendment

Freedom of speech, press, assembly, and religion

What does the due process clause of the 5th and 14th amendment protects?

Life liberty and property.

How does the 14th amendment apply to the 5th amendment

It incorporates the protections in the 5th amendment to the states.

4th amednment

Right aganist unreasonable search and sezuire

Particularity clause (specificty clause)

Particularity describing the place to be searched, and the persons or things to be seized.

key requirments of prodedural due process

notice

opportunity to be heard

neutral decision maker

exapmles of due procedural due process

right to a fair jury

right to counsel

right to remain silent

righ to confront witness

barron v. baltimore

court rules that the 5th amendment just compensation clause did not apply to the state government

Gitlow v. new york 1925

partly reversed barron and established that while the bill of rights was designed to limt the power of the federal government, the incorporation princile allows it to be applied to states

Powell v. alabama 1932 scottsboro boys

incorporated the 6th amendment right to consel in capital offense cases, held that the right to retain a alwyer was a fundamental to a fair trial and that in some cases the judge must unform a defendant of this right

Palko v. connecticut 1937

court notes that some bill of rights huarantees, such as freedsom of toughts and speecch, are fundamental and the 14th amendment due process clause absorbed these fundamental righst and applied them to the states

• however, protection aganist double jeopardy was not a fundamental right

Gideon v. wainwright 1963

gideion represented himself and was found guilty, supreme court case that established that the right to an attorney is a fundamental procteced by the 6th amendment of the consitituion, overturned betts and extended the right to cournsel to all criminal defendats in state and federal courts-resulted in the public defender office

Benton v maryland 1969

SCOTUS overturned palko, holding that double jeopardy clause of the 5th amendment as applied to the states is an elemnt of liberty protected by due process of the 14th amendment

Judicial review and three levels of scruitny

1. Rational basis

   rational relationship to a legitamite government purpose no fundamental rights are involved, nor is there any discrimination based on race or gender

2. Inttermediate scrutiny (gender)

   government must prove there is a substantial relationship between the law and the purpose

3. Srict scrutiny (race)

   narrolwy tailored to a compelling state interest, cases involving certain fundamental rights such as free speech or discrimination based on race

1st amendment protections

speech, religion, press, assembly, and petition

• generally people cannot be held liable for what they say or write if its trutful on an honest opinion

• the government can prohibit speech that may cause violence or a breach of the peace.

Freedom of speech exceptions

1. imminent lawless action

2. fightingwords/hate speech doctrine

3. obscene speech

Brandenburg v ohio (brandenburg test)

SCOTUS held that givernment cannot punish inflammatoru speech ulness that speech is “directed to inciting or producting imminent lawwless action and is likely to incite or produce such action”

two prong test:

1. The speech must be directed to inciting or producing imminent lawlessa ction

2. must be likely to incite or produce such action

Fighting words/ hate speech doctrine

established through chaplinsky v. new hampshire