The authority of the State and Federal Government to incarcerate is circumscribed by and contained within the Fourteenth Amendment:
The means by which life, liberty or property can be deprived includes that of delineated penalties for criminal acts, which are described before the fact by a legislature, and are levied upon a person by competent judicial action.
A court will describe a deprivation, usually that of liberty.
Deprivation of liberty is an awful thing, and carries with it implicit restrictions and other nuisances. Such a deprivation is so impeding upon the innumerable and various freedoms a person usually enjoys, so as to constitute a sorrowful and burdensome impediment. The effects of the penumbra of being deprived of one's liberty interest constitute the bulk of the punishment for its deprivation.
However, the State's incursion upon a criminal's rights is checked by the Ninth and Tenth Amendments:
James Madison offered the following in description of this principle:
The Tenth Amendment reads:
The principles of sentencing in one particular action of law parallel these principles innately; those principles are drawn from these statements. A person can be deprived of a certain right; they cannot be deprived of rights not listed in the penalties assessed by action of legislature and judicial due process of law.
Liberty may be deprived by due process of law, and a person may be remanded to a certain place for a certain period of time. The place to which remanded may have penological regulations, which act in further durance upon one's otherwise-retained rights. But they cannot substantively encroach upon other retained rights to the degree that they functionally impair rights which are still retained.
One obvious test for retained rights is - could a legislature, or a court, have marked a certain right or liberty interest for impediment - but did not? That is the most obvious case. A penalty not given is to be considered withheld, unless otherwise evident.
The summit is deprivation of life. If a penalty does not deprive a person of life, then any State action which intentionally does so, violates the Fourteenth Amendment.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The means by which life, liberty or property can be deprived includes that of delineated penalties for criminal acts, which are described before the fact by a legislature, and are levied upon a person by competent judicial action.
A court will describe a deprivation, usually that of liberty.
Deprivation of liberty is an awful thing, and carries with it implicit restrictions and other nuisances. Such a deprivation is so impeding upon the innumerable and various freedoms a person usually enjoys, so as to constitute a sorrowful and burdensome impediment. The effects of the penumbra of being deprived of one's liberty interest constitute the bulk of the punishment for its deprivation.
However, the State's incursion upon a criminal's rights is checked by the Ninth and Tenth Amendments:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Ninth Amendment
James Madison offered the following in description of this principle:
It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.
Madison
The Tenth Amendment reads:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Tenth Amendment
The principles of sentencing in one particular action of law parallel these principles innately; those principles are drawn from these statements. A person can be deprived of a certain right; they cannot be deprived of rights not listed in the penalties assessed by action of legislature and judicial due process of law.
Liberty may be deprived by due process of law, and a person may be remanded to a certain place for a certain period of time. The place to which remanded may have penological regulations, which act in further durance upon one's otherwise-retained rights. But they cannot substantively encroach upon other retained rights to the degree that they functionally impair rights which are still retained.
One obvious test for retained rights is - could a legislature, or a court, have marked a certain right or liberty interest for impediment - but did not? That is the most obvious case. A penalty not given is to be considered withheld, unless otherwise evident.
The summit is deprivation of life. If a penalty does not deprive a person of life, then any State action which intentionally does so, violates the Fourteenth Amendment.
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