Welcome Gov Team! Boot up, Lids down.

Date: 09/21/09, Topic: Due Process + Equal Protection

Think of items to discuss.

Announcements:

Gov Team Agenda1) Due Process and SDP Moot Courts3) Equal Protection and EPC Moot Courts3) Boumediene v. Bush Moot Court4) Sullivan v Florida Moot Court

Unit To Dos1) 2nd Question Due Monday 9/28

Reminder1) Look over unit digital files!2) Help Sam with sweat shirt ideas

U3vU6 U1vU5 U2vU4

Notes #14a, Title: “Due Process Notes” 1)

Constitution

A1: Congress

A1S8C1: Tax +Spend

A2: President

A3:Fed Courts

A1S8C3Interst.

Commer.

Veto + carrying out laws

Ex Orders + Sign.

Statements

Judicial Review

Subst. DP

Rule of Law (but NASCAR style)

Notes #14a, Title: “Due Process Notes” 2) Due Process (DP): Legal concept that gov must respect

your legal rights (Magna Carta).3) Procedural Due Process: Legal concept that gov must

follow pre-determined steps (accepted)4) Substantive Due Process: Legal concept that the content

of the law may not take way fundamental liberty (strict int. reject S DP)

Lochner v. NY (1905) > Roe v. Wade (1973)5) Fundamental Liberty: Bill of Rights (accepted), personal privacy: body + family issues (st int reject)6) 5 th Amendment (1791): Along with other things, 5 says

federal gov must give you DP.7) 14 th Amendment (1868): Along with other things, 14 says

states must give you DP.8) Selective Incorporation: Courts over series of cases order

states to obey S DP (parts of BOR > personal privacy) 1: Gitlow v. NY (1925) 6: Gideon v. Wainwright (1963)

Notes #14a, Title: “Due Process Notes” 2) Due Process (DP): Legal concept that gov

must respect your legal rights (Magna Carta).

Notes #14a, Title: “Due Process Notes”

3) Procedural Due Process: Legal concept that

gov must follow pre-determined steps (accepted)

4) Substantive Due Process: Legal concept that the content of the law may not take way fundamental liberty (strict int. reject S DP)

Lochner v. NY (1905) > Roe v. Wade (1973)

Notes #14a, Title: “Due Process Notes” 5) Fundamental Liberty: Bill of Rights (accepted),

personal privacy: body + family issues (st int reject)

Notes #14b, Title: “Due Process Notes”

6) 5 th Amendment (1791): Along with other things, 5 says federal gov must give you DP.

7) 14 th Amendment (1868): Along with other things, 14 says states must give you DP (leading to incorporation)

5 th Amendment (1791):Nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

a) Only accused can refuse to talk (self-incrim)b) Fed gov protect procedural+substantive DPc) Gov force you to sell to it your property, itcan re-sell for common good (eminent domain)

14 th Amendment (1868):All persons born or naturalized… are citizens of

the United States…Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person… equal protection of the laws.

a) Ppl born here are citizensb) States protect procedural+substantive DPc) States give everyone equal treatment

Reverse incorporation: 5 th SDP say Fedmust give equal protection for all ppl too.

Notes #14b, Title: “Due Process Notes” 8) Selective Incorporation: Extending parts of theBOR to states case by case thru 14th (P+S DP). 1: Gitlow v. NY (1925) 6: Gideon v. Wainwright

(1963)

2nd Amend.has not yetbeenincorporated.

8)Title:DP Flow Chart

Fed must follow BOR (5th)

14th A passes saying states must give due process (PDP>SDP)

Courts begin incorporating parts of the BOR, some thru PDP,

some thru SDP

Courts then expand SDP to include personal privacy, the substance of laws can’t deny

personal privacy (Lochnerizing)

What power judges should have?

PDP: Justmake sure govs(state/fed)followsthe rightsteps (esp crime/trials)

SDP-Lite Just make sure that govs (state/fed)don’tviolate BOR

SDP (precedent): Make sure govs(state/fed)don’t violatewhat courtdecide arefund. liberties.

Notes #14a, Title: “Due Process Notes” 9) Strict Scrutiny: No right absolute, over series

of cases, legal test to take way fund freedom:a) Gov has a compelling reasonb) Only way possiblec) Done in the most narrow means(We will see strict scrutiny again as a 3 level test

when it comes to equal protection of the law)

Work #14a, Title “Lochner v. NY (1905)”With a partner or unit, case summary:1) Synthesis of the facts of the case 2) Synthesis of the issue statement3) Synthesis of the majority and dissenting holdings4) Create own oral legal argument for your side 14 th Amendment: “shall any State deprive any person of life, liberty, or

property, without due process of law”

Strict Scrutiny:a) Gov has a compelling reasonb) Only way possiblec) Done in the most narrow means

Work #14b, Title “Gitlow v. NY (1925)”With a partner or unit, case summary:1) Synthesis of the facts of the case 2) Synthesis of the issue statement3) Synthesis of the majority and dissenting holdings4) Create own oral legal argument for your side 14 th Amendment: “shall any State deprive any person of life, liberty, or

property, without due process of law”

Strict Scrutiny:a) Gov has a compelling reasonb) Only way possiblec) Done in the most narrow means

Work #14c, Title “Roe v. Wade (1973)”With a partner or unit, case summary:1) Synthesis of the facts of the case 2) Synthesis of the issue statement3) Synthesis of the majority and dissenting holdings4) Create own oral legal argument for your side 14 th Amendment: “shall any State deprive any person of life, liberty, or

property, without due process of law”

Strict Scrutiny:a) Gov has a compelling reasonb) Only way possiblec) Done in the most narrow means

14 th Amendment (1868):All persons born or naturalized… are citizens of

the United States…Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person… equal protection of the laws.

a) Ppl born here are citizensb) States protect procedural+substantive DPc) States give everyone equal treatment

Reverse incorporation: 5 th SDP say Fedmust give equal protection for all ppl too.

Notes #15a, Title: “Equal Protection Notes” 1) Equal Protection Clause (EPC): 14th says

states must treat everyone equally (14: Civil War). Reverse incorporated to also mean Fed must EPC (Bolling v Sharpe, 1954)

Brown v. Board I (1954) > Ricci vs. De Stefano (2009)Note: 14th A’s EPC only applies to state/local govs, notprivate biz, which is why Civ Rights Act of 64 used ICC

Notes #15a, Title: “Equal Protection Notes”

2) Gov Can Treat People Unequally - 3 Levels Test:1) Strict Scrutiny (Compelling Test) Applies to:Race, religion, political access, “fund. rights”Gov has to prove compelling gov interest, theaction is only way, and is most narrowly done.

2) Middle Tier Scrutiny (Important Test) Applied to:GenderGov has to prove important gov interest.

3) Minimal Scrutiny (Rational Test) applied to:Commercial activity, children’s rightsNeed to have a rational reason.

Work #15a, Title “Korematsu v US (1944)”With a partner or unit, case summary:1) Synthesis of the facts of the case 2) Synthesis of the issue statement3) Synthesis of the majority and dissenting holdings4) Create own oral legal argument for your side 14 th Amendment: “No State shall...deny to any person within its jurisdiction the equal protection of the laws.”

Strict Scrutiny:a) Gov has a compelling reasonb) Only way possiblec) Done in the most narrow means

Work #15b, Title “US v Virginia (1996)”With a partner or unit, case summary:1) Synthesis of the facts of the case 2) Synthesis of the issue statement3) Synthesis of the majority and dissenting holdings4) Create own oral legal argument for your side 14 th Amendment: “No State shall...deny to any person within its jurisdiction the equal protection of the laws.”

Middle Tier Scrutiny (Important Test):Does the government (this case, VA) have an

important interest in this issue.

Work #15c, Title “Grutter v Bollinger (2003)”With a partner or unit, case summary:1) Synthesis of the facts of the case 2) Synthesis of the issue statement3) Synthesis of the majority and dissenting holdings4) Create own oral legal argument for your side 14 th Amendment: “No State shall...deny to any person within its jurisdiction the equal protection of the laws.”

Strict Scrutiny:a) Gov has a compelling reasonb) Only way possiblec) Done in the most narrow means

Fall Book:NY Times Book of the Year

Cost: $10Goal: by Block Day

We are trying to get him to come speak to our class in March.

Archivist sets up a Pbworks for your unit.

1) Share with your group2) Create a “Boumediene”

page. 3) Divide your research

and post your findings to the group’s pbworks (links, files) and text.

Consider using Pbworks with your group for comp research. It is used by many companies as a way to create synergy at work!

Work #16a, Title “Boumediene v. Bush (2008)”U1+6: Art 1, S9, U2+4: Am5, U3+5: Am6 1) Read over case brief and start net research tocreate your unit oral argument using precedent.

Article 1, Section 9:Writ of Habeas Corpus shall not be suspended, unless whenin Cases of Rebellion or Invasion the public Safety mayrequire it. No Bill of Attainder or ex post facto Law.Amendment 5:Nor be deprived of life, liberty, or property, without dueprocess of law.Amendment 6:In all criminal prosecutions, the accused shall enjoy the rightto a speedy and public trial, by an impartial jury, and to beinformed of the nature and cause of the accusation; to beconfronted with the witnesses against him, and to have theAssistance of Counsel for his defense.

Work #17a, Title “Florida v. Sullivan (2008)”U1+5: Am8, U2+4: 14th P-DP, U3+6: 14th-EPCThis is our UC Hastings moot court case:1) Synthesis of the facts of the case 2) Synthesis of the issue statement3) Synthesis of the majority and dissenting holdings4) Read briefs, amicus, & research law + precedent.

Amendment 8:“Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.”14 th Amendment-P-DP: “No State shall...deny to any person within its jurisdiction the equal protection of the laws.”14 th Amendment-EPC:“No State shall...deny to any person within its jurisdiction the equal protection of the laws.”

This is a realcase, real pplstill waitingto be heard bySCOTUS (11/09)

Gov Team Agenda1) Due Process and SDP Moot Courts3) Equal Protection and EPC Moot Courts3) Boumediene v. Bush Moot Court4) Sullivan v Florida Moot Court

Unit To Dos1) 2nd Question Due Monday 9/28

Reminder1) Look over unit digital files!2) Help Sam with sweat shirt ideas

U3vU6 U1vU5 U2vU4