Unit 3, Lesson 18
How Has the Due
Process Clause of the
Fourteenth
Amendment Changed
the Constitution?
Fifth Amendment
No person shall be. . .deprived of life,
liberty, or property, without due
process of law."
Fourteenth Amendment, §1
No State. . .shall any State deprive any person
of life, liberty, or property, without due
process of law. . .
Questions
Easy ones first. . .



Who is entitled to
due process of law?
Who or what must
provide due
process?
When is due process
of law required?
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"?
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.
Meaning: Constitution
Words imply fair
procedure (“how” action
is taken)
Steps government must
Use before taking away



Life
Liberty
Property
Who decides process “due”


Policy makers make
rules
Judges interpret
constitutions
(national/state)
What are life, liberty,
property?


Common sense
meanings
Broader meanings
Life Includes
corporations
Liberty includes
movement and (past)
contracts
Property includes
reputation, job,
inventions
Due process in practice
Criminal-Notice, fair trial, counsel, pre and post processes
Civil--
Notice, hearing, employ counsel, impartial
decision-maker
Civil includes administrative actions
E.g., termination of benefits, school discipline,
licensing/regulation
Two additional dimensions of
due process

Substantive due process

Incorporation of Bill of Rights
“SUBSTANTIVE” due process
There are some things governments
cannot do at all, no matter what
procedures they follow
“Fundamental rights” analysis
U.S. Supreme Court decides what
government cannot do
Examples of substantive due
process

Late 19th century:
Liberty of contract


State and national
economic regulatory laws
struck down
20th century: Right of
privacy

Laws banning interracial
marriage, abortion, and
some sexual practices
struck down
“Incorporation” of Bill of
Rights

Bill of Rights limits national government

14th Amendment due process clause limits states

Does 14th Amendment due process mean Bill of
Rights also limits states?
Supreme Court embraces
“selective incorporation”


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Not all rights in Bill of Rights are equal
Due process requires states to respect rights
“fundamental to scheme of ordered justice”
Whether right in Bill of Rights limits state
decided case-by-case
Future of due process


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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?