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Incorporation and new federalism
supreme court holdings on incorporation of rights and new federalism

Additional Law Flashcards




Duncan v. Louisiana
ordered liberty embraces those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and is basic in our system of jurisprudence and is a right essential to a fair trial.
Issue Outline for incorporation under 14th A
  1. Is there state action?
  2. Is there standing?
    1. Rakas: the state act must be against a personal interest (no personal interest as a passenger in a car you don't own, no interest in the drugs under the seat, thus no violation); Wong Sun: violation must be against defendant to trigger exclusionary rule. (there could be a violation, but it won't trigger exclusionary rule if it does not offend defendant's 4A interest). 
  3. Enumerated rights (the first 8)
    1. is the claimed process part and parcel to a provision contained in the text of the first 8?
  4. Unenumerated rights
    1. Fundamental fairness: 
      1. Is the right among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions? Is it basic in our system of jurisprudence? Is it a right essential to a fair trial? (Duncan)
      2. Does the claimed abuse taken as a whole shock the conscience, offend a sense of justice, and fails to respect certain decencies of civilized conduct? (Rochin)
    2. Evaluate system as a whole: given the whole system, is the particular procedure fundamental? Is it necessary to make the system fundamentally fair? 
    3. Standard for inclusion: the need to incorporate is evaluated by reference to the "totality of the circumstances test" (according to lassiter TOC is not a test at all, but a margin of error) (stovall v. Denno). cts are generally more willing to expand rights at trial stage than investigatory stage. 
    4. Scope and nature: Should the right be incorporated to state courts or should each case be decided on an ad hoc basis?
does it shock the conscience? offend a sense of justice? or fail to respect certain decencies of civilized conduct?
Ohio v. Robinette
reaffirming a prior holding under the adequate and independent ground of the Ohio State Constitution. (adopting a totality of the circumstances test to evaluate voluntariness of consent to search.

The Ohio Constitution should be harmonized with the 4th A, unless there are persuasive reasons to find otherwise.

police stopped robinette for speeding. issue warning. then asked if he had any contraband? Then asked if he could search? Found marijuana. held: search was not voluntary under totality of circumstances test.
Ohio v. Brown
Ohio Constitution provides greater protection than the 4th A.

(quoting arnold v. Cleveland) Ohio constitution is a document of independent force. The US constitution provides a floor. As long as stte courts provide at least as much protection as the US constitution, state courts are unrestricted in according greater civil liberties and protections.
California v. Greenwood
States may impose greater restrictions on police activity pursuant to its own state constitution than is required by federal standards.
Arkansas v. Sullivan
States may not interpret federal constitution to provide more rights. (A state may impose greater restrictions according to its state constitution, but a state may not impose greater restrictions as a matter of federal constitutional law).
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