Unit 3, Lesson 18 - PowerPoint Presentation

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Unit 3, Lesson 18

How Has the Due Process Clause of the Fourteenth Amendment Changed the Constitution?Slide2

Fifth Amendment

No person shall be. . .deprived of life, liberty, or property, without due process of law."Slide3

Fourteenth Amendment, §1

No State. . .shall any State deprive any person of life, liberty, or property, without due process of law. . . Slide4

QuestionsEasy ones first. . .

Who is entitled to due process of law?Who or what must provide due process?When is due process of law required?Slide5

Harder questions

What is due process of law? Who decides what process is due?Culturally determined?Evolving or static?

What is meant by "life, liberty, or property"?Slide6

Meaning: Magna Carta, 1215

No freeman shall be taken, imprisoned,...or in any other way destroyed...except by the lawful judgment of his peers, or by the law of the land. To no one will we sell, to none will we deny or delay, right or justice.

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Meaning: Constitution

Words imply fair

procedure (“how” action

is taken)

Steps government must

Use before taking away

Life

Liberty

PropertySlide8

Who decides process “due”

Policy makers make rulesJudges interpret constitutions (national/state) Slide9

What are life, liberty, property?

Common sense meaningsBroader meaningsLife Includes corporationsLiberty includes movement and (past) contractsProperty includes reputation, job, inventionsSlide10

Due process in practice

Criminal-- Notice, fair trial, counsel, pre and post processesCivil-- Notice, hearing, employ counsel, impartial decision-maker

Civil includes administrative actions

E.g., termination of benefits, school discipline, licensing/regulation

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Two additional dimensions of due process

Substantive due processIncorporation of Bill of RightsSlide12

“SUBSTANTIVE” due process

There are some things governments cannot do at all, no matter what procedures they follow“Fundamental rights” analysisU.S. Supreme Court decides what government cannot do Slide13

Examples of substantive due process

Late 19th century: Liberty of contractState and national economic regulatory laws struck down20th century: Right of privacyLaws banning interracial marriage, abortion, and some sexual practices struck downSlide14

“Incorporation” of Bill of Rights

Bill of Rights limits national government14th Amendment due process clause limits states Does 14th Amendment due process mean Bill of Rights also limits states?Slide15

Supreme Court embraces “selective incorporation”

Not all rights in Bill of Rights are equalDue process requires states to respect rights “fundamental to scheme of ordered justice”Whether right in Bill of Rights limits state decided case-by-caseSlide16

Future of due process

Will government be given more leeway over criminal and civil proceedings?Will courts “discover” additional “fundamental rights” or back away from recognized ones?How will social/cultural changes affect concept?