5th vs 14th Amendment

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Mamba1991
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5th vs 14th Amendment

Postby Mamba1991 » Mon Apr 20, 2015 3:45 pm

Can anyone briefly help me understand the difference between the 5th and 14th Amendments in their application. For the latter, would one have to sue the Federal gov't under both the 5th and 14th? Thanks.
Last edited by Mamba1991 on Mon Apr 20, 2015 5:21 pm, edited 1 time in total.

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pancakes3
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Re: 5th vs 14th Amendment

Postby pancakes3 » Mon Apr 20, 2015 4:14 pm

You must not like reading very much.

Mamba1991
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Re: 5th vs 14th Amendment

Postby Mamba1991 » Mon Apr 20, 2015 8:57 pm

We didn't cover the difference b/w the two in class. Just started individual rights a couple of weeks ago. I appreciate your concern.

ilikebaseball
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Re: 5th vs 14th Amendment

Postby ilikebaseball » Mon Apr 20, 2015 8:59 pm

wait, really?

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star fox
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Re: 5th vs 14th Amendment

Postby star fox » Mon Apr 20, 2015 9:13 pm

14th amendment due process is the same as 5th but the 5th concerns federal government action and the 14th state action.

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encore1101
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Re: 5th vs 14th Amendment

Postby encore1101 » Mon Apr 20, 2015 9:24 pm

It's a broad question, but generally, the Fifth Amendment proscribes federal government conduct, while the Fourteenth Amendment proscribes State government conduct. Also, the Fourteenth Amendment is the mechanism by which certain Bill of Rights are "incorporated" against the States -- for example, the Fourth Amendment used to prohibit the federal government from conducting unreasonable searches and seizures, but the Fourteenth Amendment also prohibits States from conducting unreasonable searches and seizures as well.

Note that States are can always "give" their citizens more rights (or limit the powers of the government more) than the federal constitution provides. The Fourteenth Amendment and the incorporation doctrine just sets the "bottom floor" of rights.

Mamba1991
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Re: 5th vs 14th Amendment

Postby Mamba1991 » Mon Apr 20, 2015 10:53 pm

encore1101 wrote:It's a broad question, but generally, the Fifth Amendment proscribes federal government conduct, while the Fourteenth Amendment proscribes State government conduct. Also, the Fourteenth Amendment is the mechanism by which certain Bill of Rights are "incorporated" against the States -- for example, the Fourth Amendment used to prohibit the federal government from conducting unreasonable searches and seizures, but the Fourteenth Amendment also prohibits States from conducting unreasonable searches and seizures as well.

Note that States are can always "give" their citizens more rights (or limit the powers of the government more) than the federal constitution provides. The Fourteenth Amendment and the incorporation doctrine just sets the "bottom floor" of rights.


Thanks for the help. Just to be clear, the first amendment, for example, would apply through selective incorporation to the state and local governments through the 14th amendment. So any attempt by a state to abridge that right (through a state ban on certain speech for example) would be invalidated by the court as a violation of the 1st amendment rights? Or would it implicate the 14th amendment as well because it's incorporated through that? Sorry if this is more obvious than I understand it to be.

WheninLaw
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Re: 5th vs 14th Amendment

Postby WheninLaw » Mon Apr 20, 2015 11:22 pm

Mamba1991 wrote:
encore1101 wrote:It's a broad question, but generally, the Fifth Amendment proscribes federal government conduct, while the Fourteenth Amendment proscribes State government conduct. Also, the Fourteenth Amendment is the mechanism by which certain Bill of Rights are "incorporated" against the States -- for example, the Fourth Amendment used to prohibit the federal government from conducting unreasonable searches and seizures, but the Fourteenth Amendment also prohibits States from conducting unreasonable searches and seizures as well.

Note that States are can always "give" their citizens more rights (or limit the powers of the government more) than the federal constitution provides. The Fourteenth Amendment and the incorporation doctrine just sets the "bottom floor" of rights.


Thanks for the help. Just to be clear, the first amendment, for example, would apply through selective incorporation to the state and local governments through the 14th amendment. So any attempt by a state to abridge that right (through a state ban on certain speech for example) would be invalidated by the court as a violation of the 1st amendment rights? Or would it implicate the 14th amendment as well because it's incorporated through that? Sorry if this is more obvious than I understand it to be.


Are you in law school or college?

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Br3v
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Re: 5th vs 14th Amendment

Postby Br3v » Tue Apr 21, 2015 12:57 am

Mamba1991 wrote:
encore1101 wrote:It's a broad question, but generally, the Fifth Amendment proscribes federal government conduct, while the Fourteenth Amendment proscribes State government conduct. Also, the Fourteenth Amendment is the mechanism by which certain Bill of Rights are "incorporated" against the States -- for example, the Fourth Amendment used to prohibit the federal government from conducting unreasonable searches and seizures, but the Fourteenth Amendment also prohibits States from conducting unreasonable searches and seizures as well.

Note that States are can always "give" their citizens more rights (or limit the powers of the government more) than the federal constitution provides. The Fourteenth Amendment and the incorporation doctrine just sets the "bottom floor" of rights.


Thanks for the help. Just to be clear, the first amendment, for example, would apply through selective incorporation to the state and local governments through the 14th amendment. So any attempt by a state to abridge that right (through a state ban on certain speech for example) would be invalidated by the court as a violation of the 1st amendment rights? Or would it implicate the 14th amendment as well because it's incorporated through that? Sorry if this is more obvious than I understand it to be.


That would technically (I think) be a 14th amendment violation. If you said "1st amendment violation" people would know what you mean, and on the other hand, if you said "14th violation" without any context, people would be unsure which incorporated right you are talking about. So it's best to say "a first amendment violation as applied through the 14th amendment" or something along those lines.

To get to your original question, I think you might be thinking of the reverse problem where equal protection is applied to the federal government. Unlike the 14th, the 5th has no equal protection clause but the Court has in essence read an EP clause into the 5th, saying it would be "unfair" to hold states to a harder standard than the fed govt. I forget what case though there's probably a few that say it.

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pancakes3
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Re: 5th vs 14th Amendment

Postby pancakes3 » Tue Apr 21, 2015 6:10 am

Mamba1991 wrote:Can anyone briefly help me understand the difference between the 5th and 14th Amendments in their application. For the latter, would one have to sue the Federal gov't under both the 5th and 14th? Thanks.


Mamba1991 wrote:We didn't cover the difference b/w the two in class. Just started individual rights a couple of weeks ago. I appreciate your concern.


Did you cover sovereign immunity?

Mamba1991
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Re: 5th vs 14th Amendment

Postby Mamba1991 » Tue Apr 21, 2015 8:18 am

pancakes3 wrote:
Mamba1991 wrote:Can anyone briefly help me understand the difference between the 5th and 14th Amendments in their application. For the latter, would one have to sue the Federal gov't under both the 5th and 14th? Thanks.


Mamba1991 wrote:We didn't cover the difference b/w the two in class. Just started individual rights a couple of weeks ago. I appreciate your concern.


Did you cover sovereign immunity?


No

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encore1101
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Re: 5th vs 14th Amendment

Postby encore1101 » Tue Apr 21, 2015 8:48 am

Mamba1991 wrote:
encore1101 wrote:It's a broad question, but generally, the Fifth Amendment proscribes federal government conduct, while the Fourteenth Amendment proscribes State government conduct. Also, the Fourteenth Amendment is the mechanism by which certain Bill of Rights are "incorporated" against the States -- for example, the Fourth Amendment used to prohibit the federal government from conducting unreasonable searches and seizures, but the Fourteenth Amendment also prohibits States from conducting unreasonable searches and seizures as well.

Note that States are can always "give" their citizens more rights (or limit the powers of the government more) than the federal constitution provides. The Fourteenth Amendment and the incorporation doctrine just sets the "bottom floor" of rights.


Thanks for the help. Just to be clear, the first amendment, for example, would apply through selective incorporation to the state and local governments through the 14th amendment. So any attempt by a state to abridge that right (through a state ban on certain speech for example) would be invalidated by the court as a violation of the 1st amendment rights? Or would it implicate the 14th amendment as well because it's incorporated through that? Sorry if this is more obvious than I understand it to be.



If it's a state government doing the oppressing, it would be a violation of both First Amendment and Fourteenth Amendment rights. If you wanted to be more precise, you would say it's a violation of First Amendment, as incorporated against the States via the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652 (1925).

But incorporated rights are fairly well established now that nobody is going to say you're incorrect by saying "in violation of both First Amendment and Fourteenth Amendment rights" or "in violation of First Amendment rights" or "in violation of First Amendment rights, as incorporated against the States by the Fourteenth Amendment." You might get some flack on a law school writing class, but in practice, everybody will know what you're talking about.

Sovereign Immunity is the doctrine that municipalities can't be sued unless they allow it. So for example, if you're a protestor at Occupy: Wall Street, and you got your ass beat by the cops, you couldn't sue the City of New York, assuming NYC hasn't waived Sovereign Immunity. However, you can sue the individuals (at the time, Bloomberg, Kelly, etc.) in their official capacity.

Mamba1991
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Re: 5th vs 14th Amendment

Postby Mamba1991 » Tue Apr 21, 2015 11:02 am

encore1101 wrote:
Mamba1991 wrote:
encore1101 wrote:It's a broad question, but generally, the Fifth Amendment proscribes federal government conduct, while the Fourteenth Amendment proscribes State government conduct. Also, the Fourteenth Amendment is the mechanism by which certain Bill of Rights are "incorporated" against the States -- for example, the Fourth Amendment used to prohibit the federal government from conducting unreasonable searches and seizures, but the Fourteenth Amendment also prohibits States from conducting unreasonable searches and seizures as well.

Note that States are can always "give" their citizens more rights (or limit the powers of the government more) than the federal constitution provides. The Fourteenth Amendment and the incorporation doctrine just sets the "bottom floor" of rights.


Thanks for the help. Just to be clear, the first amendment, for example, would apply through selective incorporation to the state and local governments through the 14th amendment. So any attempt by a state to abridge that right (through a state ban on certain speech for example) would be invalidated by the court as a violation of the 1st amendment rights? Or would it implicate the 14th amendment as well because it's incorporated through that? Sorry if this is more obvious than I understand it to be.



If it's a state government doing the oppressing, it would be a violation of both First Amendment and Fourteenth Amendment rights. If you wanted to be more precise, you would say it's a violation of First Amendment, as incorporated against the States via the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652 (1925).

But incorporated rights are fairly well established now that nobody is going to say you're incorrect by saying "in violation of both First Amendment and Fourteenth Amendment rights" or "in violation of First Amendment rights" or "in violation of First Amendment rights, as incorporated against the States by the Fourteenth Amendment." You might get some flack on a law school writing class, but in practice, everybody will know what you're talking about.

Sovereign Immunity is the doctrine that municipalities can't be sued unless they allow it. So for example, if you're a protestor at Occupy: Wall Street, and you got your ass beat by the cops, you couldn't sue the City of New York, assuming NYC hasn't waived Sovereign Immunity. However, you can sue the individuals (at the time, Bloomberg, Kelly, etc.) in their official capacity.



That's very helpful. Thanks a lot!

Internetdan
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Re: 5th vs 14th Amendment

Postby Internetdan » Tue Apr 21, 2015 3:19 pm

WheninLaw wrote:
Mamba1991 wrote:
encore1101 wrote:It's a broad question, but generally, the Fifth Amendment proscribes federal government conduct, while the Fourteenth Amendment proscribes State government conduct. Also, the Fourteenth Amendment is the mechanism by which certain Bill of Rights are "incorporated" against the States -- for example, the Fourth Amendment used to prohibit the federal government from conducting unreasonable searches and seizures, but the Fourteenth Amendment also prohibits States from conducting unreasonable searches and seizures as well.

Note that States are can always "give" their citizens more rights (or limit the powers of the government more) than the federal constitution provides. The Fourteenth Amendment and the incorporation doctrine just sets the "bottom floor" of rights.


Thanks for the help. Just to be clear, the first amendment, for example, would apply through selective incorporation to the state and local governments through the 14th amendment. So any attempt by a state to abridge that right (through a state ban on certain speech for example) would be invalidated by the court as a violation of the 1st amendment rights? Or would it implicate the 14th amendment as well because it's incorporated through that? Sorry if this is more obvious than I understand it to be.


Are you in law school or college?


I think people are giving to much credit to the legal education system, all of which is basically at the discretion of the professor.
I didn't study either of these in detail and my torts professor skipped intentional torts in its entirety because "we can study for it during the bar."

Hell I still don't even know what due process or habeas corpus really means in any detail. No one ever took the time to explain it.

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bjsesq
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Re: 5th vs 14th Amendment

Postby bjsesq » Tue Apr 21, 2015 3:26 pm

Mamba1991 wrote:
pancakes3 wrote:
Mamba1991 wrote:Can anyone briefly help me understand the difference between the 5th and 14th Amendments in their application. For the latter, would one have to sue the Federal gov't under both the 5th and 14th? Thanks.


Mamba1991 wrote:We didn't cover the difference b/w the two in class. Just started individual rights a couple of weeks ago. I appreciate your concern.


Did you cover sovereign immunity?


No

Of course you didn't. You're a first year law student. You just got finished readin' some Marxian historian -- Pete Garrison probably. You're gonna be focused on that 'til next month when you get to James Lemon, and then you're gonna be talkin' about how the economies of Virginia and Pennsylvania were entrepreneurial and capitalist way back in 1740. That's gonna last until next year -- you're gonna be in here regurgitating Gordon Wood, talkin' about, you know, the Pre-revolutionary utopia and the capital-forming effects of military mobilization.

exitoptions
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Re: 5th vs 14th Amendment

Postby exitoptions » Tue Apr 21, 2015 3:31 pm

bjsesq wrote:
Mamba1991 wrote:
pancakes3 wrote:
Mamba1991 wrote:Can anyone briefly help me understand the difference between the 5th and 14th Amendments in their application. For the latter, would one have to sue the Federal gov't under both the 5th and 14th? Thanks.


Mamba1991 wrote:We didn't cover the difference b/w the two in class. Just started individual rights a couple of weeks ago. I appreciate your concern.


Did you cover sovereign immunity?


No

Of course you didn't. You're a first year law student. You just got finished readin' some Marxian historian -- Pete Garrison probably. You're gonna be focused on that 'til next month when you get to James Lemon, and then you're gonna be talkin' about how the economies of Virginia and Pennsylvania were entrepreneurial and capitalist way back in 1740. That's gonna last until next year -- you're gonna be in here regurgitating Gordon Wood, talkin' about, you know, the Pre-revolutionary utopia and the capital-forming effects of military mobilization.


Well, as a matter of fact, he won't, because Wood drastically underestimates the impact of social...

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bjsesq
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Re: 5th vs 14th Amendment

Postby bjsesq » Tue Apr 21, 2015 3:36 pm

exitoptions wrote:Well, as a matter of fact, he won't, because Wood drastically underestimates the impact of social...

Nice catch

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alphasteve
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Re: 5th vs 14th Amendment

Postby alphasteve » Tue Apr 21, 2015 3:56 pm

This thread turned good.




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