Incorporation and Retroactivity Flashcards
What is Incorporation
is a constitutional principle that applies the Bill of Rights, originally intended to restrict only the federal government, to the state governments as well. This doctrine emerged from a series of Supreme Court decisions, which interpreted the Fourteenth Amendment, specifically the Due Process Clause, as requiring states to adhere to the Bill of Rights.
What is Retroactivity
Retroactivity refers to the legal principle that a law or court decision can apply to events or actions that occurred before the law or decision was made.
Retroactivity can apply to both criminal and civil law and can refer to laws that increase or decrease penalties, change the rules of evidence, or alter the rights of individuals.
What are the important clauses of the 4th
- First, dealing with unreasonable searches and seizures
- Second, no warrants without a probable cause
- The touchstone of the 4th is reasonableness
- Textually the probable cause is used to define the minimum showing necessary to support a warrant application
- Riley v. California → the 4th was the response to reviled general warrants and writs of assistance of the colonial era
What is Substantive Due Process
refers to the principle that certain rights are so fundamental that they cannot be denied by the government without a compelling reason. These rights are considered “substantive” because they go beyond the guarantees of procedural due process, which ensure that individuals are given fair procedures when their rights are being restricted.
What is Harlan’s Approach for Retroactivity
Justice Harlan proposed a more moderate approach to retroactively adopting new constitutional rules. He argued against the idea of applying new constitutional rules only prospectively, meaning they would not be applied to cases that were already final. Instead, Harlan advocated for a two-pronged test to determine the retroactivity of new rules:
Purpose of the new rule: Harlan argued that if the purpose of the new rule is to enhance the reliability of the fact-finding process in criminal cases, the rule should be applied retroactively. If the new rule does not serve this purpose, it should not be applied retroactively.
Reliance and burden on the administration of justice: Harlan also considered the extent to which law enforcement officials and courts have relied on the old rule and the potential impact of applying the new rule retroactively on the administration of justice. If the reliance on the old rule was substantial and the burden of applying the new rule retroactively would be significant, the new rule should not be applied retroactively.
What is Harlan’s New Rule Principle
Purpose of the new rule: Harlan argued that if the purpose of the new rule is to enhance the reliability of the fact-finding process in criminal cases, the rule should be applied retroactively. If the new rule does not serve this purpose, it should not be applied retroactively.
Reliance and burden on the administration of justice: Harlan also considered the extent to which law enforcement officials and courts have relied on the old rule and the potential impact of applying the new rule retroactively on the administration of justice. If the reliance on the old rule was substantial and the burden of applying the new rule retroactively would be significant, the new rule should not be applied retroactively.
What is the Watershed Rule
holds that new rules of criminal procedure will be applied retroactively if they “alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.”
This exception applies to new rules that fundamentally change the way trials are conducted and affect the accuracy of guilty verdicts.
Who are “the people” & US v. Verdugo-Urquidez
“The people” are those that are apart of a national community or those that developed sufficient connection with the country so as to be considered apart of it
The purpose of the 4th was to protect the people of the US against arbitrary action from the US government
Verdugo-Urquidez was a part of the national community enough to warrant the officers to search his things, but not enough to receive the protection of the 4th
Duncan v. Louisiana - Dunkin Donuts
is one such case that helped define the concept of selective incorporation. The case involved the right to a jury trial in criminal cases, as protected by the Sixth Amendment. Gary Duncan, a Black teenager, was convicted of simple battery in a Louisiana court without a jury trial. Duncan appealed his case, arguing that the state had violated his Sixth Amendment right to a jury trial. The Supreme Court, in a 7-2 decision, ruled in favor of Duncan, holding that the right to a jury trial in criminal cases is fundamental to the American scheme of justice and that the Fourteenth Amendment’s Due Process Clause requires states to provide a jury trial for serious criminal offenses. This decision selectively incorporated the Sixth Amendment’s right to a jury trial, making it applicable to the states.
Teague v. Lane - Tea with Habeas
The Supreme Court should not apply a new rule retroactively, requiring the fair-cross-section of the community in the Sixth Amendment to be applied to the petit jury. Following Justice Harlan’s approach, the retroactivity of new rules depends on the purpose of habeas corpus petitions. Applying this new rule retroactively would not serve the primary function of habeas corpus, which is to deter lower courts from violating constitutional standards.
