Participants in the Judicial System

2. Participants in the Judicial System • Parties to the lawsuit • Plaintiff - the party bringing the charge • Defendant - the party being charged • Jury - the people (normally 12) who often decide the outcome of a case • Judge – must be impartial in the common law system • Attorneys – right to assistance of counsel is fundamental to the participation

3. Real Cases & Real People • Justiciable disputes: A case must be capable of being settled as a matter of law. • No “advisory” opinions • Standing to sue: • plaintiffs have a serious interest in the case; • have sustained or likely to sustain a direct injury • Case must fall within the “jurisdiction” of the court • subject matter jurisdiction • personal jurisdiction

4. What Are The Policy Choices? • What Does the Constitution Mean? • What Are Rights? • What Happens When Rights Conflict? • Individuals v Individuals • Groups v Groups • Individuals v Groups • How Much Deference Does the Court Give To Congress? To the States? • Can a decision be implemented? How will the other branches of government – and the country – respond?

5. Defining Terms Civil Liberties (Amend 1) Basic Freedoms (e.g., speech and religion), Citizens Protections against actions of the government Civil Rights (Amend 5, 14, and by legislation) Positive Acts of Government Protections against discriminatory treatment The Principle of Limited Government Constitutional Guarantees Personal Freedoms

6. Rights Are Relative There are many Constitutional Guarantees of Rights However, No one can do anything they please Each persons rights are relative to the rights of other people You have a right to freedom of speech But you do not have a right to cause panic

7. Which of the BOR are most important? • Amendment One • Establishment Clause • Free Exercise Clause • Speech • Press • Peaceable assembly • Petition for redress of grievances • Amendment Two • “the right of the people to keep and bear arms shall not be infringed.”

8. 14th Amendment’s Due Process and Equal Protection Clauses • “…nor shall any state deprive any person of life, liberty, or property without due process of law;nor (shall any state) deny any person within its jurisdiction the equal protection of the law.”

9. Do the Bill of Rights apply to the states? • Originally, the BOR only protected people from the Federal Government • Added as a promise that the new, and stronger, federal government wouldn’t get too strong. • It was assumed that each state had its own bill of rights • 14th Amendment applied it to states • THE INCORPORATION DOCTRINE

10. “Selective” Incorporation Theory • On a case-by-case basis the SCOTUS has nationalized the Bill of Rights • Once an amendment has been incorporated, you are protected from both the federal and state governments

11. Due Process • Procedural: fair procedures (observe BOR, provide reasonable notice, etc) • Substantive: Laws themselves MUST be fair • Your turn: Classify the following • Police strip searches • Compulsory vaccination • Minimum wage • Firing city employee w/out a hearing

12. Incorporation Analogy • The 14th Amendment is a sponge. • The sponge is covered in due process pores • The due process pores soak up a specific right (clause) in amendments 1, 4, and portions of 5, 6, 8 and 9 • The SCOTUS squeezes the sponge over state and local governments and soaks them with a new Constitutional standard.

13. Incorporation ExampleGideon v. Wainwright • Gideon was not allowed an attorney after being arrested for a felony • A Florida STATE judge told Gideon that the 6th amendment didn’t apply to him because he wasn’t being charged with a FEDERAL crime – therefore the state didn’t’ have to honor Gideon’s 6th amendment protections

14. Incorporation ExampleGideon v. Wainwright • From prison, Gideon petitioned the Supreme Court to use the Due Process Clause to “soak up” the 6th Amendment and get a new trial – this time with an attorney • He applied for a writ of certiorari (orders the case to go immediately to the SCOTUS “to be made more certain”)

15. GIDEON v. WAINWRIGHT (1965) All people in the US, whether charged in federal or state court, have the right to an attorney (for felony charges) 6 6 14th Amendment Due Process Pores 6 6 6th Amendment Right to counsel (attorney) Incorporation ExampleGideon v. Wainwright Ruling applies to all 50 states - States change laws if necessary

16. 6th Amendment Incorporation Occurred Selectively/Gradually • 1932 Right to Counsel in Capital Cases Powell v. Alabama • 1948 Right to a Public Trial In re Oliver • 1963 Right to counsel in felony cases Gideon v. Wainwright • 1965 Right to confrontation of witnesses Pointer v. Texas • 1966 Right to an impartial jury Parker v. Gladden • 1967 Right to a speedy trial Klopfer v. NC • 1968 Right to jury trial for serious crimes Duncan v. LA • 1972 Rt to counsel for all crimes w/prison Argersinger v. Hamlin Selective incorporation means that over time the SCOTUS has selectively Determined what parts of amendments the states have to respect. Not all amendments have been incorporated.

17. Key Clauses: Equal Protection • Located in the 14th Amendment • Deals with Discrimination • Definition: classification / treating groups differently; • Some inevitable— • Can you provide me with a couple of examples?

18. Key Clauses: Equal Protection • Suspect classification test (Strict Scrutiny): • Suspect class—one that has historically suffered unequal treatment on the basis of race or national origin; • There must be a compelling purpose for the discrimination to be constitutional • Examples??

19. Key Clauses: Equal Protection • Quasi-suspect class (heightened scrutiny) • Sex is the category here • Not quite as high as race • States must show that the law bears some relation to important governmental objectives