8. The Eighth Amendment: excessive bail & cruel & unusual punishment - both rarely seen on the bar examination, but not unheard of & will appear in a criminal law or criminal procedure question. For a long time there was a question whether the Eighth Amendment provisions regarding excessive bail was incorporated under the Fourteenth Amendment to the States. That question has been answered and cruel and unusual punishment is part of the incorporation doctrine.
When to use it? Anytime common sense dictates that the punishment does not meet the crime committed. And, do not be shy with the application of it. If you sense it, then include it. Since this is an area in which there is not much provided for you to follow, then common sense will dictate. It is not that big of a deal because it will not be the lead answer in any question.
9. Article IV (the Supremacy Clause); The Tenth Amendment (powers of Federalism). Both are rarely seen, but can come up when there is a question on the exam related to jurisdiction, conflict of laws, family law, or a federal courts' question. Just keep it simple. Federal laws dictate and if not an area controlled by the federal government, then it is relegated to the states (police powers govern states' health and welfare). A Federal statute and a state statute can co-exist even if both cover the same topic, but the state statute cannot conflict with the provisions of the federal statute. The state statute) can give what a Federal statute provides; it can even enhance it, but the state statute cannot directly or indirectly contravene that which the Federal statute says.
10. The Eleventh Amendment may be more popular in certain states than in others. rate stomach This amendment provides that a person may not sue a state. However, a person can sue the representatives of a state which is in a jurisdiction like Florida, for example.
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ReplyDeleteThanks for sharing these Amendment's of our constitutional law.This will help the people to know new change in their law.
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Mr. Gates: you are welcome. I provided some "Con Law Lite" comments because I want examinees to be cognizant of the different ways in which a question may take form. Constitutional law has so many nuances and often application to a problem can involve more than one article or amendment. So we have to keep our minds alert and our eyes open whenever a statute, rule, or regulation (or, policy) of the government is present during a problem.
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