Constitutional Law Sample

The Constitution of the United States of America is known as the supreme law of the land. Within these historic pages, even in our modern times, is a section known as the Bill of Rights, which explains each of our freedoms. Every freedom is important and these freedoms have not been subtracted from but added to as time progressed. A couple of rights have “aged out,” which simply means that with modern progress they are not applicable anymore.

But without the Fourteenth Amendment giving us the right to due process and equal protection of the laws, we would be left without a recourse for redress from losses resulting from violations of other freedoms. The right to due process of the law and equal enforcement of the law is the enforcer right of them all. The due process clause and equal protection clause, is found in the Fourteenth Amendment, which states, “[No State shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

” These words were first applied in the Fifth Amendment but this was limited, applying to only the Federal government, not the States. The Fourteenth Amendment was created in 1868 to expand the Fifth Amendment, including the States, government agencies, and the courts. As these concepts are applied to the court setting, it means that a person shall receive a fair and impartial hearing among other rights, as well as equal application of said laws regardless of the person’s race, sex, disability, etc… There are two types of due process: procedural and substantive.

According to the U. S. Constitution Online, procedural is covers the “how” and substantive is the “why”. The how analyzes the laws that apply to the action and makes sure that they are clearly worded and narrowly defined. The why incorporates whether the law is constitutional or if it violates our rights. To apply the how and why to a court setting, due process rights ensure that you will receive a fair trial and impartial trial in front of a jury of one’s peers that the accused person is permitted to attend.

They may present evidence and testify for one’s own defense, while exercising their Fifth Amendment[1] right not to self incriminate. One has a right to face his accusers and cross-examine any witnesses that the opposing side may present. Also, it is expected that the law be written in plain English so a layman may understand, among many other provisions that assist in keeping our courts a level playing field. The equal protection clause also in the Fourteenth Amendment similarly gives fair access to laws and to grieve to all persons.

This applies to the courts as well. The historical roots of this concept date back to Thomas Jefferson with his famous quote: “All men are created equal” as found in the Declaration of Independence. This concept eventually paved the way to abolish slavery and segregation, thereby establishing rights regardless of race. During this period landmark cases were argued within the Supreme Court that we still look upon as primary authority today, such as the famous case of Brown v. Board of Education of Topeka, 347 U. S. 483 (1954).

Women gained equal protection as well, and eventually the rights to vote and own property due to the equal protection clause, so one may not discriminate due to sex. Disabled individuals followed suit and eventually gained the official right to equal protection of the laws with a progression of the Civil Rights Act and Rehabilitation Act, eventually leading to the Americans with Disabilities Act of 1990 and most recently with the Amendment Act of 2008 (ADAAA). These particular laws have a far reach, so they are broken into five Titles.

Transportation, Education, and Employment are just touch on the topics, as nearly a quarter of the population of the United States is disabled in some fashion. Title II covers the courts and all other public services serving the public. As recently as August of 2010 a Massachusetts Supreme Court case (No. SJC-10609) was decided involving the access of a disabled elderly woman in the courts, according to Wendy Murphy, J. D. , whom argued the case and presented the facts in September at this year’s International Conference on Ending Violence, Abuse, and Trauma (IVAT). The

two main points found that a disabled individual is allowed “testimonial” access even if accommodations are necessary to do such, and the individual has a right to redress the government if the mandates of the ADAAA are not followed even if by a court or judicial officer. Affirmative action was born and no discrimination shall be based on race, sex, sexual orientation, age, disability, or religion. These equality rights are established within their own tiers of scrutiny and this very question was at the forefront of the Warren Courts. For example, strict scrutiny was not applied until the case of Korematsu v.

United States, 323 U. S. 214 (1944). Intermediate scrutiny began with the case of Craig v. Boren, 429 U. S. 190 (1976). Eventually after much debate the Supreme Court came to the conclusion that cases on the basis of race would be a fundamental right and therefore deserve strict scrutiny from the courts. This simply means that the court would look more closely at these cases, and more laws could be broken if an action fell into this tier. Intermediate scrutiny would be applied to cases involving cases regarding issues of discrimination on the basis of sex.

The Rational-basis test shall be used for all other infringements that may fall under the due process clause or the equal protection clause. These rights have progressed a very long way from the days that an incompetent or disabled individual could be put to death for crimes, or that a woman could not vote. Without the right to due process and equal protection under the laws, the people of this country would have no enforcement of their individual rights. They would have no real access to our courts or a remedy for redress.

They would not have a fair and impartial application of our laws. To this day, Thomas Jefferson’s famous quote still rings true. REFERENCES: Brown v. Board of Education of Topeka, 347 U. S. 483 (1954) Strauss, P. (n. d. ). Due Process. Cornel University Law School. Retrieved from http://topics. law. cornell. edu/wex/due_process Craig v. Boren, 429 U. S. 190 (1976) Kanovitz, J. R. Constitutional Law. Matthew Bender & Company, New Providence (12th ed. 2010). Korematsu v. United States, 323 U. S. 214 (1944) Mount, S. (January 24, 2010). “Constitutional Topic: Due Process.

” USConstitution. net. Mount, S. (January 24, 2010). “Constitutional Topic: Equal Protection. ” USConstitution. net. Murphy, W. (September, 2010). Case No. SJC-10609 The Fifth Amendment, U. S. C. A. Const. Amend. 5 The Fourteenth Amendment, U. S. C. A. Const. Amend. 14 Wikipedia. (September 2, 2010). Equal Protection Clause. Retrieved from http://en. wikipedia. org/wiki/Equal_Protection_Clause

References  [1] “[n]or shall be compelled in any criminal case to be a witness against himself…” U. S. C. A. Const. Amend. 5