Note opinion of the court
The concurring opinions
Descending opinions
Which sh
Note opinion of the court
The concurring opinions
Descending opinions
Which shows different points of view
Be explain your decision and be detailed , in your own words.
Should the 3rd amendment be binding in the states ?( hypothetical case) : Imagine you are a Justice in the Supreme Court and you have been assigned to write an opinion in this case what would you say and why?? ) Be detailed, build in the standard from the earlier cases, Cite cases where important and show which cases are important and why?
Make sure to trace back to different cases and justices and the views they have expressed
Use the standards found in precedent
As you prepare your comments about the Third Amendment note that the precedents you draw upon to organize your comments should be Supreme Court decisions dealing with the incorporation issue. As you research the issue you might encounter Engblom v. Carey but this 1982 decision isn’t a Supreme Court case. It was decided by a lower federal court, so it’s not directly relevant to the issue presented in this discussion board. However, you may find some of the Engblom case, and especially Kaufman’s separate opinion, useful for background about the Third Amendment and historical context for deciding the Ponder case. A link to Engblom v. Carey
Links to an external site.
is found here. Still, you should focus instead on cases dealing with incorporation of the Bill of Rights found in the Epstein, McGuire and Walker assigned reading beginning with Barron v. Baltimore through to more recent cases like Duncan v. Louisiana, as well as other materials posted on the Canvas course site that address the incorporation issue.
The materials in this assignment address two central questions : (1) do the Bill of Rights limit the states as well as the national government and if so (2) do all the amendments, or only some of them, apply to the states. Palko v, Connecticut provides standards intended to guide the answers to these questions. Duncan v. Louisiana (1968), reprinted in the Epstein and Walker book, offers multiple perspectives on this complex issue and deserves close attention. The Duncan case illustrates how these standards were applied to the issue of the Sixth Amendment right to a jury trial and that the justices on the Supreme Court do not always agree on the standard to be used nor how to apply them. Especially useful in the Duncan case is what Justice Black writes in his concurring opinion and why he is not fully agreeing with the opinion of the court written by Justice White. Likewise, Justice Fortas and Justice Harlan offer yet other views. Read these opinions carefully to make sure you understand the standard in the Palko case (and others) that determines which rights in the Bill of Rights limit the states and which do not. It’s found in a section of the opinion in Palko that discusses why certain rights may be more fundamental than others and thus especially important in a system of government that places a premium on what Justice Cardozo, writing for the majority in the Palko case, refers to as ” scheme of ordered liberty.”
Give yourselves ample time to read and understand the cases and other reading materials that trace the evolution of this problem about the relationship between the Bill of Rights and the states. Table 3.1 in the Epstein and Walker book provides a summary of the tests that have been used to determine which provisions of the Bill of Rights apply to the states and how they have evolved and Table 3.2 provides a list of cases that have incorporated provisions in the Bill of Rights so far. The most recent cases incorporating parts of the Bill of Rights are McDonald v. City of Chicago (2010)
Links to an external site.
incorporating the Second Amendment and Timbs v. Indiana (2019)
Links to an external site.
incorporating the excessive fine prohibition of the Eighth Amendment. A few parts of the Bill of Rights still don’t limit state governments, such as the grand jury provision of the 5th Amendment. In these circumstances the role of state constitutions as guarantors of rights and liberties become especially important.
This week’s discussion board presents a hypothetical case for you to decide. It deals with whether the Third Amendment should be made applicable to the states.
Starting with this assignment, most of the reading in the Epstein and Walker book will be edited versions of Supreme Court decisions. If you haven’t done so already, you should read “How to Read a Legal Opinion”
Links to an external site.
, especially if you have little experience reading court cases. Another document you should read presents a list of some of the broad themes that run through constitutional law
and that will help you think about how to relate individual cases to more general themes about constitutional policy making.
Additional cases to help with writing a legal opinion of the court :
Barron v. Baltimore
https://www.oyez.org/cases/1789-1850/32us243
Griswold v. Connecticut
https://www.oyez.org/cases/1964/496
Duncan v. Louisiana
https://www.oyez.org/cases/1967/410
