o * * * Copy and Paste * * * Amend with Class Notes * * *
14th AMENDMENT DUE PROCESS
v 14th Amendment
o States have to follow due process of law
v Total Incorporation
o Justice Black believed all of and only the rights listed in the Bill of Rights should be incorporated via the 14th Amendment.
§ This approach has never been followed
v Three Early Approaches
o Incorporate rights which the denial of is a denial of due process of law (Twining v. New Jersey, 1908)
o Incorporate rights implicit in the concept of ordered liberty, rights without which an enlightened system of justice would be impossible. (Palko v. Connecticut, 1937)
o Incorporate rights required by the principles of justice as conceived by a civilized society (Adamson v. California, 1947)
v Duncan v. Louisiana, 1968
o Incorporate rights which are fundamental to the American System (even if a system of justice is possible without them)
§ This approach allowed incorporation of trial by jury.
o The approach of Duncan has become the bedrock of incorporation analysis.
§ But see, Roper v. Simmons, 2005. Kennedy, J. wrote, “‘it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty. The opinion of the world community, while not controlling in our outcome, does provide respected and significant confirmation for our own conclusions.”
· Scalia, J., dissenting, argued that this is not a faithful interpretation of the Constitution, as American juries have been allowed to decide whether youth is a factor.
v Incorporation Analysis
o Two part test: Is a right fundamental to the American System? If so, how much of the right applies?
§ How to determine whether a right is fundamental?
· Look at what the states are doing
· Example, Roper:
o Number of States
o Original Intent
o “Gut” Feeling
o Foreign Sources
§ But, this conflicts with Duncan.
o In practice,
§ States cannot go below the federal constitutional interpretation
· Ask: Does this “straight-jacket” the states?
§ States can provide more protection than the Constitution requires
THE RIGHT TO COUNSEL
v The Right to Trial Counsel
o Historical Cases
§ Powell v. Alabama (1932), provided that you only have a right to counsel in capital cases, where you were poor, and you weren’t able to represent yourself.
· The deprivation of the time and opportunity to secure counsel was a clear denial of due process.
§ Johnson v. Zerbst (1938), provided that indigent federal defendants have a right to appointed counsel (at least in all felony cases). But, this right does not necessarily apply to the states.
· See then, Betts v. Brady (1942)