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The incorporation of the bill of rights refers to the process by which the supreme court has applied sections of the Bill of Rights of U.S. to the states (Breyer, 2005). Before this incorporation, the bill of rights applied only to the federal government. The incorporation was to the effect that the states and local authorities now obey the incorporated protections and prohibitions. This is courtesy of the due process clause of the fourteenth amendment (Breyer, 2005).

Some protections available to criminal offenders through the bill of rights have not been incorporated so states are not required to follow them. These include the right to indictment by a grand jury (Madison, 2008). This is quite evident since the constitutions of many states provide for indictment by grand jury contrary to the bill of rights. This especially happens when the case involved is a serious crime (Madison, 2008). The right to jury trial in civil cases has also not been incorporated. This is a right that allows juries to search for facts concerning the case while the determination of the case is left to be done by the judge (Madison, 2008). The jury basically listens to the case, evaluates the evidence presented before it to find facts and then makes a decision following the rules governing them as well as the law. Lastly, provisions for protections against “excessive” bail and “excessive” fines have not been incorporated and therefore not observed by the states (Madison, 2008).

Substantive law focuses on the substance of the matter. Essentially, it defines how facts in the case are supposed to be handled and how the crime is to be charged (Kelvin, 2004). Substantive protections seek to reserve the individual’s authority to possess particular things even though the intention of the government may be to the contrary. Substantive due process requires that the police should make criminal defendants aware of their rights before any interrogation is made (Kelvin, 2004). For instance, the defendant should be informed of his/her right to remain silent as any information given would be used as evidence against him/her. This right is provided for in the fourth amendment (Kelvin, 2004).

Procedural law on the other hand focuses on the process that the case will follow. It focuses on how proceedings as far as the enforcement of substantive law will take place (White, 2000). This process ensures fair administration of the law in order to eliminate arbitrary as well as unreasonable decisions. Procedural rights emphasize on fairness hence the government can lawfully take away freedom , life or property of an individual if the law says so be done (White, 2000). Procedural protection therefore gives defendants the right to be informed adequately of the particular charges or proceedings, the right to be heard as these proceedings are carried out, and the right to an impartial judgment from however is handling the case (White, 2000).

In a nut shell therefore, substantive law is concerned with the creation, definitions and the regulation of rights while procedural law is concerned with the enforcement of these rights as well as redress in the event that the rights are violated (Kelvin, 2004). Protections which are substantive include: freedom of speech, and right to privacy while procedural protections include: the right to adequate notice of a law suit, the right to be present as testimony is given, as well as the right to have an attorney (Kelvin, 2004).

References

Breyer, S. (2005). Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf.

Kelvin, R. (2004). Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice. Washington: Regnery

Madison, A. (2008). A Dummies Guide to Understanding the Fourteenth Amendment . New York: Routledge.

White, G. (2000). The Constitution and the New Deal. Cambridge: Harvard University Press.

 

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