Explain the concepts of fundamental law and government by the ...

[rachel9]

Explain the concepts of fundamental law and government by the will of the people. Why are these two ideas contradictory? How does SCOTUS uphold these two contradictory ideas?
 
  What will be an ideal response?

Question 2

Summarize the differences among the fundamental fairness, total incorporation, and selective incorporation doctrines as they influence state criminal procedures.
 
  What will be an ideal response?

[Sarahjh]

Answer to Question 1

The political, dualistic nature of SCOTUS refers not to partisan gain, but to its commitment to two conflicting ideals: fundamental law and the will of the people. The will of the people refers to the power of the people to create laws, while the ancient concept of fundamental law places limits on that power. To uphold these contradictory ideas, SCOTUS must shape its decisions with the public good in mind.

Answer to Question 2

Below is an example of a correct answer to this question. There are other ways to answer the question that may also be correct.

The fundamental fairness doctrine focused on general fairness. Under this doctrine states could largely define their own criminal procedures, as long as they did not offend fundamental rights.

Under the total incorporation doctrine, all provisions of the Bill of Rights were considered incorporated into the Fourteenth Amendment due process clause and thus applicable to the states. Under this doctrine, states in a criminal justice system would have to follow identically all those rights guaranteed to the accused in federal criminal proceedings.

Finally, the selective incorporation doctrine argued that some provisions of the Bill of Rights were incorporated into the notion of due process and thus applicable against the states, and some were not. When a right was considered so fundamental as to be incorporated into the due process clause and applied to the states, the states would have to apply that right exactly as it was in a federal criminal proceeding.