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Constitutional Law and Bill of Rights

Ques 1) In terms of the “Equal Protection Clause”, discuss the tests used by the courts to determine if an act of government is a form of unreasonable or unreasonable discrimination.

Ques 2) What was the original intent of the “Bill of Rights”?  Which provisions of the “Bill of Rights” have not been incorporated into the “Due Process Clause” of the 14th Amendment?

Ques 3) What is “Due Process”?  Discuss the key elements of “Due Process”.

Ques 4)What is “Substantive Due Process”?   Discuss the various methods used to challenge an act of government.

Ques 5) What is “Procedural Due Process”  Briefly discuss the steps applicable to Procedural Due Process.

Ques 6) What is a “Suspect Classification”?  Discuss the elements of a “suspect classification”.

Ques 7) Briefly discuss the Amendments of the Bill of Rights.


Answer

In terms of the “Equal Protection Clause”, discuss the tests used by the courts to determine if an act of government is a form of unreasonable or unreasonable discrimination. 

The Equal Protection clause is considered to be violated if the state permits a particular class of individuals or community to perform a specific activity but other communities are denied of the same. It is noteworthy that the courts usually determine the violation of the clause through the following tests:

  • Strict scrutiny test

The courts usually use judicial review in order to determine the constitutionality of certain laws. This test is a part of hierarchy of standards which is followed by the united States Court in order to determine the gravity of the constitutional right or government’s interest against the observance against that particular principle. The strict scrutiny standard is applied by the US courts in two different contexts. Firstly, in case of the infringement of the fundamental constitutional right and secondly in case of the infringement of the fundamental right that is protected by the Due Process Clause or the “liberty clause”.


  • Substantial relations Test

The intermediate scrutiny test which is the second level of deciding issues using judicial review requires to be overcome by showing that the policy or the law has been challenged or infringed because of an important government interest through the means which are substantially associated with that interest. It depends on the sex based classifications, illegitimacy, free speech and sexual orientation.


  • Rational Basis Test

This test is used by the courts in order to determine the constitutionality of an ordinance. In order to pass through this test the challenged law needs to be related to a legitimate government interest. 

What was the original intent of the “Bill of Rights”?  Which provisions of the “Bill of Rights” have not been incorporated into the “Due Process Clause” of the 14th Amendment?

The initial and original intent of the “Bill of Rights” was to specify the rights of the Congress, what measurements are subjected under their rights and which are not.  The purpose was to protect the common rights of the people and to ensure that people are not being deprived of their rights.

In the Due Process Clause the second, third, fifth and seventh amendments had not been included.

Amendment II: as per this amendment the right to keep and bear arms have been incorporated against the states. But this has not been incorporated and acknowledged in the 14th amendment. In amendment III the provision of freedom from quartering of soldiers has been incorporated against the states under the jurisdiction of the United States Court of Appeals for the Second circuit but the provision has not been incorporated elsewhere. The U.S Supreme Court has never had a case regarding the provision of third amendment appealed to it.

Amendment V: The provision of right to indictment by a grand jury had not been incorporated against the states.

Amendment VI: Right to a jury chosen from residents of the state and the state where the particular crime occurred has not been incorporated against the states.

Amendment VII: the right to jury trial in civil cases has not been incorporated against the states along with the Re-examination clause.

Amendment VIII: The provision of the right regarding the right to protection against the excessive fines has not been incorporated against the states.


What is “Due Process”?  Discuss the key elements of “Due Process”.  

The Due Process originates in the 5th and the 14th amendment. The 5th amendment applies to the Federal government and the 14th amendment is applied to the states. The primary Due Process Clause provides every individual with fair treatment. As per the clause no individual shall be deprived of “life, liberty or property” without Due process of the Law. It also ensures fair treatment through the normal judicial system and a citizen’s entitlement is considered.

The specific elements of Due Process are:

  • Defendant’s right to receive a notice and one’s right to have the idea of the charges and the elements of the charges and in specific cases the right to know the accuser.
  • Right to know the timelines of the process along with each of the step of the process.
  • Right to present own evidence and in some cases the accused has the right to question the provided evidence brought by the opposition. In cases of meeting the accuser the defendant also enjoys the right to respond accordingly to the raised concerns.
  • The accused also has the right to be accompanied and advised by relevant person and in some cases also the right to legal counsel.
  • Right to have an impersonal and fair fact finding process which will eventually lead to an impartial and fair hearing.
  • The accused has adequate right to take a decision which is not capricious or ambiguous in nature and does not indicate any arbitrariness or unreasonableness.
  • Every individual has the right to sent the notice of the undertaken decision and in some cases also has the right to a written decision along with the written statement of the reasons for undertaking such decision.
  • In some cases one also has right to an appeal process.
  • In cases of raising a complaint in a responsible manner and in a good faith, freedom of retaliation is also provided.
  • In some cases it is considered to be right to treat one’s case in the same manner as done to the cases similar to that particular case.
  • Right of privacy is also respected as far as possible in some of the cases.


What is “Substantive Due Process”?   Discuss the various methods used to challenge an act of government.  

Substantive due process indicates towards a notion which describes that due process along with the protection of certain legal procedures also protects certain rights which are not related to the legal procedures. As per the opinions of several legal experts due process is associated with the procedure rather than the substance. Although a school of legal experts also believe that due process clause includes protection of the substantive due process. Substantive due process includes several things such as the right to be engaged in an ordinary work, marriage and raising one’s children as a parent. Even today the Substantive due process is invoked regarding many cases but it is not free from criticism.


If a law or act is challenged because of its ability to violate individual liberty under the Due process clause, two forms of scrutiny or judicial review are used by the courts. In this case the function of the inquiry is limited to balance the importance of the governmental interest. If it is found by the evaluation that governmental actions have infringed individual right then strict scrutiny which is considered to be the highest level of review is being applied. In order to pass strict scrutiny it is necessary to tailor the law or the act narrowly.


If any type of restrictions are found regarding the restricting the liberty in a way which does not directly violate the fundamental right, then rational basis review is commenced. The purpose of the review is to rationally relate a legitimate government interest which is prior to the violation of the individual right.

Along with these two types of review, there is another type of review that is known as the intermediate scrutiny and it is majorly used in the cases related to equal protection rather than Due process cases.


What is “Procedural Due Process”  Briefly discuss the steps applicable to Procedural Due Process.  

Procedural Due Process deals with the principle which is required by the Constitution that if the state or the federal government acts in a way that infringes the primary rights of a citizen or denies any citizen of life, liberty or property, then the person under such condition requires to be notified and she or she must be first given notice of the fact along with the opportunity to be heard.

Procedural Due Process includes the following steps:

  • The first step is an unbiased tribunal.
  • Secondly, the accused person requires to be notified by a written notice that depicts the proposed action against the person and the grounds of such assertion also need to be mentioned.
  • The accused needs to have the opportunity to present against the proposed action and why such actions need not to be taken against him or her.
  • Then, the accused can present evidence to support him which includes his rights to call witnesses for support.
  • Information of the evidence which has been presented by the opposition.
  • Right to cross check and scrutinize the adverse witnesses.
  • The decision is to be based completely upon the evidence which has been presented.
  • The accused can be represented by a counsel.
  • The tribunal in order to prepare a record of the presented evidence.
  • The tribunal in order to prepare a written finding of fact and also the reasons for such decision.


What is a “Suspect Classification”?  Discuss the elements of a “suspect classification”. 

As per the American jurisdiction a suspect classification is the classification of different groups which meet a series of criteria that suggest their chances to be discriminated from the lot. These classes receive closer scrutiny from the courts regarding any cases related to the Equal protection claim. Suspect classification indicates towards a characteristic which is used in applying a law that is under the review of a strict scrutiny of the court. Any classification that is mentioned to be suspected because of its being likely to be founded upon illegal discrimination is known as suspect classification. One of the examples of suspect classification is the race.


Elements of Suspect Classification:

There are several factors which help the court to determine whether a classification is suspect. The factors are

  • Perennial Loser: the court often considers the fact whether the classified group is often subjected to discrimination to a point that the group is deemed to be a perennial loser in the political struggle.
  • Intentional: The court also identifies whether the discrimination in the challenged statute is intentional.


Intentional discrimination can be of three types:

  • Facially discriminatory nature of the statue
  • Existence of discriminatory administration
  • Purposeful discrimination.


Briefly discuss the Amendments of the Bill of Rights.

Bill of rights also known as the declaration of rights is the list of the most important rights to the citizens of a country. The first amendments of the U.S Constitution are summarized as following:

  • In the first amendment freedom of religion, speech, press, assembly and petition have been revised. This amendment emphasizes on the freedom of speech, religion, speech and assembly of the citizens.
  • Right to keep and bear arms. This provision has been incorporated against the state.
  • As per the third amendment the quartering of the soldiers has been denied.  
  • Fourth amendment provided the citizens freedom from unreasonable searches and seizures.
  • Next amendment provides the citizen with the rights regarding due process of law, self-incrimination and double jeopardy.
  • Sixth amendment provided additional rights to the accused persons like the accused person can avail the opportunity of public and speedy trials.
  • Rights to trial with the help of incorporating jury were provided in the eighth amendment. This opportunity has been applicable for only the civil cases.
  • The citizens, due to the eighth amendment have been liberated from excessive bail and along with that unusual and cruel punishments also had been banned.
  • Ninth amendment provided the citizens with several additional other rights.
  • Implementation of the tenth amendment ensured powers to be reserved to the states.


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