1. Due Process and the 14th Amendment
Lesson 18

2. Lesson Objectives
When you have finished this lesson you should be able to:
Explain the difference between procedural and substantive due process
Define the concept of incorporation and its effect on the powers of the states
Evaluate, take and defend positions on historical and contemporary issues involving due process

3. What is due process of law?
Due Process is a ancient principle – traced to the Magna Carta: Chapter 39
King John promised not to imprison, exile or destroy any freeman or his property, “except by lawful judgment of his peers or by the law of the land”
“Law of the land” does not appear until the 1354 version of the Magna Carta
This idea means that government must follow known and established procedures.

4. John Locke argued for protection of life, liberty and property
Includes the idea of what is fair and just
Concept is both ancient and evolving
5th Amendment contains the Constitutions first reference to due process
Limits only the national government
Article I prohibits Congress and the states from passing ex post facto laws
14th Amendment that imposes the requirement of due process on the states
Allows Congress to enforce the requirement by passing “appropriate legislation”
Courts determine if that legislation meets the requirements of the 5th and 14th Amendments

5. Procedural Due Process
Following known and established procedures is known as procedural due process
Expects government official to act in certain ways before they can regulate life, liberty or property
In England the rights of criminals focused on the rights of criminal defendants – knowing their rights and procedure should be clear and fair for a fair trial.
In US it applies to both criminal and civil matters
Can address property
Property interests
Jobs
Welfare
Unemployment benefits
reputations

6. Procedural Due Process
Can also include public school discipline
Notice
Fair hearing
Opportunity to present evidence
Opportunity to appeal an initial decision

7. Why are procedural rights important?
Legal systems in US and England are known as adversarial systems of justice
Opposing adversary groups in each case
Likely to result in clashes between parties
Each party is responsible for gathering evidence, presenting it and exposing the weaknesses of each case.
Both parties should seek to persuade a neutral, impartial decision maker – either a judge or jury.

8. Why are procedural rights important?
Criminal cases
Life, liberty and property are at stake
Defendant is innocent until proven guilty
Defendants do not have to prove themselves innocent
Prosecution must prove guilt – beyond a reasonable doubt
What would cause a person to hesitate before acting on important matters.
In civil cases the burden is lower
Side that presents the most credible case wins.
Lawyers act as advocates

9. Why are procedural rights important?
Adversarial system has been called “Fight Theory of Justice”
Parties are pitted against one another
Procedural guarantees make sure the fight is fair
Bill of Rights and Constitution place great importance on procedural fairness
Framers knew that not everyone who is accused is guilty
Europe has and inquisitorial system
Specially trained judges to act as investigators and decision makers
Parties are expected to answer all the questions the judge asks
Fewer trials, lawyers and proceedings are much shorter

10. Adversarial System Inquisitorial System Arguments Against
Judges have full investigation and presentation
Unrestrained power
Trial by jury is more impartial than by members of the government
Adversarial System Assumes:
Adversaries of ….
Equal ability
Equal resources
Truth will be yielded
Each side will present what will win
Not concerned that the truth emerges

11. Substantive Due Process
Constitution prohibits certain types of laws
Popularity of law does not matter
Assumption that some rights are very basic
Cannot be interfered with
Government must have a compelling or important reason to regulate them
Role of the courts to determine if a law is unconstitutional
Reason is compelling
Right should prevail
Fundamental rights returns to Natural Rights Theory
People have rights that are fundamental and some that are not

12. Substantive Due Process
The Courts view of substantive rights has changed over time
At one time the court viewed that the right to buy and sell a person’s labor was fundamental ruled that laws
Established minimum wage
Limiting the number of hours in a workday or workweek
Unconstitutional
1937 the court abandoned the idea that economic rights were fundamental

13. Established other fundamental rights
Right to marry and have children
Right to purchase and use birth control
Right to custody of one’s own children and rear them as one sees fit
Right of mentally competent adults to refuse medical treatment
Right of free speech
Right to interstate travel
Right of legal voters to vote
Right to associate
Right to religious freedom
The right of the government to regulate what are considered fundamental is a topic of intense controversy

14. Doctrine of Incorporation
Court originally expected states to be the principal protectors of individual rights after the passage of the 14th amendment
States had constitutions with a bill of rights
Court was concerned about interpreting the 14th amendment in a way that upset the balance of power between the national government and state governments
Not all states interpreted their bills of rights to ensure due process
They did not protect the fundamental rights of everyone within their boundaries.

15. Application of the 14th Amendment
The Supreme Court began to apply the 14th amendment with an eye to identify the rights with in the Bil of Rights that the States must protect
Gitlow v. New York 1925
Benjamin Gitlow Socialist/Communist was guilty of criminal anarchy
Published a “Left Wing Manifesto”
Upheld his conviction
Government may suppress/punish speech when it directly advocated for the unlawful or violent overthrow of the government

16. Gitlow and Incorporation
Gitlow began a process called incorporation
Using the due process clause of the 14th amendment
Deciding whether certain guarantees of the Bill of Rights limits the States as well as the national government
Over decades the Supreme Courted ruled that the due process clause prohibits States from infringing on the rights listed in the 1st amendment
In determining which rights in the rest of the Bill of Rights the States must respect the Court has followed the process of “Selective Incorporation”
Examined rights on a case by case basis
Used Justice Felix Frankfurter’s test: would it “shock the conscience” if a particular right were not interpreted to limit the States.

17. Some rights have not yet been considered….
While most rights have been incorporated into the provisions of the Bill of Rights through selective incorporation, some have not.
Court has refused/has not yet considered whether to incorporate the following rights:
2nd Amendment – right to bear arms
5th Amendment – right to an indictment by a grand jury
7th Amendment – right to a jury trial in civil lawsuits
6th Amendment – implicit requirement – jury should have 12 members; reach a unanimous verdict