DUE PROCESS OF LAW AND
EQUAL PROTECTION
I. The New Judicial Federalism
A. The Constitution is the
minimum of a person’s
rights, but such rights are
NOT always absolute.
- States may grant other
rights to its citizens if
they don’t conflict with
the U.S. Constitution or
U.S. law.
B. Doctrine of Incorporation
• The 14th Amendment
requires the states to
abide by what’s in the
Bill of Rights and
apply those rights to
their own state
constitutions and laws.
Selective Incorporation
• The gradual application of parts of the Bill of
Rights to the states (1st, 2nd, and 4th in total)
• Some rights may only be partially incorporated
such as the 5th Amendment (grand juries for
felony indictments; 8th Amendment (fines and
bails); 6th Amendment (lawyers for poor people)
• The 3rd and 7th Amendments have not been
incorporated at all.
C. Dilution
• The weakening of
a right previously
granted by law or
through a court
decision.
D. Civil Rights
• Rights guaranteed by the
Constitution that are
protected from
discrimination based
upon one’s race, gender
or other minority status.
Examples: attending
school, voting, running
for office
E. Civil Liberties
• Freedoms that are
guaranteed to everyone
in the U.S. to prevent
abuses of them by
government power.
- Examples: speech,
travel, association, bear
arms, petition
II. Due Process
•
The proper constitutional
procedures that gov’t must
follow in arrests, trials,
punishments and other legal
actions against individuals.
• Much of the Bill of Rights
limits state actions by making
its guarantees applicable to
state law through the 14th
Amendment’s Equal
Protection clause.
B. TYPES OF DUE PROCESS
• Substantive due process:
Rights of the individual, specified and
unspecified in the Constitution, that must be
protected from government interference.
Examples:
- Laws prohibiting women from attending
medical school.
- Prohibiting Hispanics from learning to read.
- Making laws that inhibit a race’s ability to vote.
Procedural Due Process
• Legal processes that prohibit arbitrary enforcement of laws and provide safeguards to ensure
protection of an individual’s constitutional rights.
Examples
- Miranda warnings at time of arrest
- rights to habeas corpus, counsel, jury trial
- ability to see a search warrant when presented
Gideon v. Wainwright (1963)
• Issue: Do poor defendants in state-level criminal
cases have the right to a public defender under the
6th Amendment?
• Decision: Yes. Public defenders allowed in any
case where a jail sentence of 6 months or more can
be imposed.
- Lawyers are necessities, not luxuries. The poor,
who must stand in court as equals, deserve counsel
as much as the rich who can afford it.
- Today, lawyers at public expense can be had for
any crime where incarceration may be imposed.
D. Rules of Evidence
• Search warrants required under the 4th Amendment.
• Conditions for a warrant:
- Must be issued on basis of probable cause.
- Must specify what can be searched for and where
a search may take place.
• General warrants are unconstitutional.
• Wiretaps are a form of search and require a court
order to carry them out.
KATZ V. UNITED STATES (1967)
• Issue: Does information collected from a public telephone
booth where no trespass onto private property occurred and
without a court order for a wiretap, violate search and
seizure protections?
• Decision: Yes. “The 4th Amendment protects people, not
places.”
- It can be assumed that words uttered in a phone booth
won’t be made known to the world.
- A reasonable expectation of privacy exists.
- A warrant for a wiretap could easily have been obtained.
THE EXCLUSIONARY RULE
MAPP v. OHIO (1961)
Issue: Can evidence obtained without a search warrant be
allowed in court?
Decision: No. Illegally obtained evidence, and other evidence
gleaned later from that same evidence, is NOT admissible in
court and is a violation of substantive due process.
- Also called the “fruit of the poisoned tree” doctrine
- Made states adhere to the exclusionary rule
- Ended a double standard between federal & state courts
• Courts acknowledge that criminals might go free on this
“technicality,” but laws must be followed or the gov’t risks
violating the charter of its own existence.
United States v. Leon (1984)
• A dilution case of the Mapp decision
• So long as police act in good faith when
requesting a warrant, the evidence they collect not
covered by the warrant may be used in court even
if the warrant is defective. Burden of proof
remains with the prosecution, however.
- This is called the “good faith exception”
• Court later said that evidence illegally obtained
was legal to use if it could be shown that it would
have been discovered later by other legal means.
III. 5th Amendment & Right of
Silence
• Miranda v. Arizona
Issue: Under what circumstances may
an interrogation take place that will
produce a confession admissible in a
court?
Miranda v. Arizona (cont’d)
• Decision: An accused person must be
notified of his right to silence and legal
counsel upon arrest and during subsequent
questioning (procedural due process!)
- Violation of 5th amendment’s prohibition on
self-incrimination
- Confessions voluntarily made prior to one’s
arrest are not covered by Miranda ruling.
- Does NOT apply to physical evidence collected
at the scene; applies only to testimonial evidence
Miranda Warnings
The warnings are a remedy to this case:
• You have the right to remain silent. (5th)
• Anything you say can be used against you
in a court of law. (5th)
• You have the right to a lawyer and have him
present at questioning. (6th)
• If you cannot afford a lawyer, one will be
provided to you at no cost. (6th)
IV. The Right to Privacy
• Privacy is not specifically
mentioned in the USSC as a
specific right, but Court has
ruled that the 4th gives
citizens a fundamental right
of privacy.
• Privacy has been interpreted
by the Court as falling under
the 9th Amendment as well.
Griswold v. Connecticut (1965)
• Issue: Dr. Griswold convicted for dispensing birth control
devices to unmarried patients and advising on their use
contrary to CT law.
• Decision: CT law was unconstitutional as it violated 4th
Amendment patient fundamental rights of privacy under the
4th Amendment. Griswold’s conviction was overturned.
- Court announced that a “zone of personal autonomy”
existed, as interpreted under the 9th Amendment, and thus
protected people from intrusion by the government into their
intimate lives.
Roe v. Wade (1973)
• Abortion established as a
constitutional right under the 4th,
9th & 14th Amendments.
• Ruled that a fetus is not a life in
the eyes of the law so it has no
rights of its own.
• Right of privacy is broad enough
to encompass a woman’s right to
terminate a pregnancy, but no
absolute right to abortion
exists! States can regulate it in
certain ways.
Roe v. Wade (cont’d)
• Court divided term of pregnancy into 3 parts:
1st trimester: Abortion on demand any time based
on “personal autonomy.” States cannot regulate
doctor’s refusal to terminate pregnancy.
2nd trimester: Abortion legal if a medical
necessity for the mother’s health. States may
regulate the abortion procedure.
3rd trimester: Abortion legal only if mother’s life
is in danger.
Dilutions to the Roe Decision
• Webster v. Reproductive Health Services
(1989)
- States can refuse to allow public health
facilities, employees and funds to be used for
abortions.
- States can place regulations on abortion
clinics.
- No abortions performed under 20 weeks if
fetus is deemed viable.
Planned Parenthood of PA. v. Casey (1992)
• Court ruled that certain restrictions on abortion by
states are prudent:
- OK to force a mother to have counseling
- Unmarried mothers can be required to tell at
least one parent; wives do NOT have to tell
husbands
- No gov’t funds to be expended on abortions for
the poor
- OK to mandate a 24 hour waiting period
V. Equal Protection Clause
A. 14th Amendment prohibits discrimination based
on race, gender, religion, etc. whether intentional
or consequential.
B. Values that are in conflict:
- Equality of opportunity: Guaranteed by the
Constitution. All have a right to try and succeed
equally and receive assistance.
- Equality of results: Not guaranteed! Results
are a measure of individual initiative and skills.
Not everyone is naturally equal in these areas.
VI. RACIAL EQUALITY
A. De jure segregation: Results from specific laws
or gov’t administrative decisions.
(e.g. Jim Crow laws)
B. De facto segregation: Results from societal
patterns over time or through deliberate, personal
choice.
(e.g. development of racial or ethnic neighborhoods
over time)
Plessy v. Ferguson (1896)
• A de jure segregation case.
• Issue: Is “separate but equal” treatment of the races
constitutional?
• Decision: Segregation by race in society was OK so
long as equal treatment was provided.
- 14th Amendment’s Equal protection clause was not
violated because USSC applied it only to legal
equality, not social equality.
- Violation of 1st Amendment to force people to
associate with those whom they find to be
objectionable.
Brown v. Board of Education (1954)
• Issue: Can states segregate public schools as a matter of
public law? (de jure segregation)
• Decision: No. Segregating children in public schools due
to race, even though the facilities and other tangible
property is equal, is unconstitutional. Such classification
causes feelings of inferiority in those segregated and
violates the 14th’s Equal Protection clause.
- Public education is a right which must be made available
to all on an equal basis.
- Court ordered the desegregation of all public schools.
- Overturned Plessy v. Ferguson “separate but equal”
precedent
Brown v. Board of Education II (1955)
• In 1955, in Brown II, the USSC ordered
states to stop dragging their feet and
implement desegregation in public schools
ordered in Brown I and to “…integrate with
all deliberate speed.”
• Resulted in southern states resorting to
“Massive Resistance.”
Swann v. Charlotte-Mecklenberg
Board of Education (1971)
• Involved de facto segregation
of racially divided
neighborhoods.
Issue: Force the state to comply
with previous Court orders to
desegregate public schools.
- Racial quotas in school must
be used where possible to
achieve educational parity.
- Small number of one-race
schools may still exist anyhow.
Swann (cont’d)
• Pairing and grouping of non-contiguous attendance
zones is permissible to achieve desegregation.
• Busing will be used to affect desegregation except
when time or distance may be detrimental to
student health or impinge on the educational
process.
• Districts may fashion remedies to create unitary
school systems (e.g. teacher reassignments, extra
curricular activities, equal pay scales, busing)
F. Voting Rights Act of 1965
• Major legislation designed to increase black and
other minority voter numbers in southern states.
- Mandated no new changes to voting laws by states
without approval of federal courts.
- No poll taxes or literacy tests allowed.
- Illegal to destroy ballots or tamper with voting machines
- Federal election examiners can be assigned to states
where voting complaints have been registered.
- Federal election officials can conduct voter registration
in any state district that has less than 50% of its minority
adult citizens registered, or if a past history of voting
irregularities exists in that state.
VII. Gender Equality
A. Equality between the
sexes is the law at all
publicly funded colleges
and universities.
- Federal money to those
institutions can be cut if
not spent equally on
men’s and women’s
sports, scholarships,
facilities, classes, etc.
B. Grove City College v. Bell (1984)
• Issue: Can a private college that receives no direct federal
assistance money for students, but which had students enrolled
who did receive direct federal grants, be bound to the rules of
Title IX Education Amendments Act, specifically the
nondiscrimination requirements of equal spending for the
sexes? Was the college’s 1st Amendment rights of free
association (right to discriminate) being violated?
Grove City College Decision
• Decision: Yes, they can be compelled to adhere
to the Title IX requirements as the Court found
there to be no substantive difference between aid
given directly to the college and aid received by
the students attending that college.
• The 1st Amendment doesn’t apply as the school
was free to refuse student payments using federal
grant money.
Grove City Coll. V. Bell (cont’d)
• College’s response: Refused to take federal
money in any form in the future so it could retain
its autonomy.
• Not taking federal funds means not having to
follow Title IX requirements
- Since most colleges cannot do without federal
money, they are compelled to abide by Title IX
which can lead to seemingly bad outcomes (e.g.
JMU sports program cuts)
United States v. Virginia (1996)
• Issue: Can women be refused
admission to a state funded
military college, such as VMI?
• Decision: No. Women have
equality of opportunity to
compete for admission because
the school is taxpayer funded.
- Whether they can compete
and succeed once they are
admitted is another matter.
Sexual Orientation and Personal Autonomy
• Homosexual conduct has restrictions in many state laws
and in other states does not provide legal protections as to
taxes, finances, health issues, etc. Also within federal law.
• Bowers v. Hardwick (1986): Court rule that only
hetero-sexual conduct is within the Constitution’s “zone of
privacy.” Consenting adults in privacy of their own homes
are not protected
• Overturned by USSC in 2003 by Lawrence v. Texas.
- “…liberty gives substantial protection to adults…in
matters pertaining to sex.”
Personal Autonomy
• Defense of Marriage Act (1996)
- US govt’s definition of marriage for tax, benefits, etc.
- States are not required to legally recognize same sex
marriages performed in other states. Does this violate the
Full Faith and Credit clause?
• Don’t Ask, Don’t Tell
- 1993 Clinton policy allowing gays to serve in military if
they didn’t publicly reveal their homosexuality.
- Overturned by an Obama Executive Order in 2012.
VIII. Affirmative Action
A. Definition: Laws designed to ensure that publicly
supported organizations or businesses give
preference to minority or other designated groups
in order to increase proportions of those minorities
within their organization. (e.g. colleges, training
programs, businesses)
B. Under A.A., Court says race shouldn’t be a factor
in the competitive market.
- Race-based A.A. is unconstitutional under the
14th’s Equal Protection clause as are any quotas
assigned solely on a racial basis.
C. Justifying Quotas
• State level governments must demonstrate actual
discriminatory practices in place, not just
statistical or historical ones, regarding underrepresentation of minority groups.
• Government must show how quotas will correct
such discriminatory practices.
• Congress can use its implied powers to pass laws
to correct past effects of racial discrimination.
D. Reverse Discrimination
• Race cannot be a factor
in gaining advantage
over other groups in any
competitive market
(e.g. gaining acceptance
to medical school; the
awarding of public
contracts; promotions
within police/fire depts.)
Regents of the University of
California v. Bakke (1978)
• Issue: Did U. of California violate the Equal
Protection clause by practicing affirmative action
by using a racial quota system for granting
admission to its professional medical graduate
school by considering that minorities are
underrepresented in some professions (e.g. law,
medicine, business, architecture, etc.)?
Bakke (cont’d)
• Decision: Yes and no. USSC accepted some forms
of affirmative action as being beneficial to society,
but…
- flatly rejected rigid numerical racial quotas.
- said schools can use race as one of several factors
(a plus factor) in awarding seats in medical school,
but race cannot be the only factor.
- “campus diversity” rationale is OK as there is a
recognized social need for diversity.
- said reverse discrimination is still discrimination.
F. Grutter v. Bollinger (2003)
• Extension of the Bakke case.
• Issue: Can the Univ. of Michigan law school use
race as a “predominant” factor in admitting minority
students or is it a violation of the Equal Protection
clause and the Civil Rights Act?
• Decision: Yes. University said minority students
should have an advantage due to historical
underrepresentation in such graduate schools. Court
reaffirmed Bakke decision by 5-4 saying race can be
one factor but, NO QUOTAS BASED ON RACE
ALONE!
Gratz v. Bollinger (2003)
• Issue: Does the university’s use of racial preferences in
undergraduate admissions violate the Equal Protection
clause or the Civil Rights Act of 1964?
• Decision: Yes. It violates both. Race cannot be used as a
criteria in selections to undergraduate admissions for the
purpose of boosting a minority applicant’s chances.
• The campus “diversity” issue from Bakke is NOT met
because the “automatic distribution of points to every
single underrepresented racial minority was not narrowly
tailored and lacked individual consideration.
IX. Age, Employment, and
Disability Discrimination
A. Americans With Disabilities Act (1990)
- Requires businesses with more than 24 employees
to make offices and facilities accessible to the
handicapped.
* Wheelchair ramps, sidewalk curb access, closein parking spots, accessible bathrooms, phone
services for the hearing impaired, etc. are required if
a business directly serves the public.
B. Equal Employment Opportunity
Commission
• Purpose: Created in 1964 to investigate
complaints of discrimination and unfair
hiring practices involving minorities. Later
extended to women and older workers.
• EEOC is often used as a political football.
- GOP believes it to be anti-business; Dems
think it “equalizes” perceived inequalities
among the races and sexes.
C. Equal Pay Act (1963)
• Prohibits employers from basing a person’s
pay on race, gender, national origin, religion
age or marital status.
• Pay is to be based only on qualifications,
length of service, education, speical
qualifications, etc.
D. Age Discrimination in Employment Act
• Prohibits employment discrimination because of
age.
- Employers can’t ask age or marital status
during interviews; they can’t pay you less because
you receive a pension from another source; can’t
ask health questions
- Act banned mandatory retirement ages in some
circumstances and increased others to age 70.
X. 8th Amendment: Legal Punishment
• Death penalty has been a
major hot button issue since
the 1970s and a continual
judicial activist social area
depending on who controls the
USSC.
• Is it cruel and unusual
punishment and thus a
violation of the USC, or is it a
just punishment for the worst
living among us?
Death Penalty
• Furman v. Georgia (1972)
- Death penalty ruled as unconstitutional
because it was thought to be arbitrarily
imposed as punishment thus making it
“cruel.”
- Minorities and the poor were more likely
to have it imposed on them then whites.
Death Penalty (cont’d)
Gregg v. Georgia (1978)
• Death penalty is constitutional and is not
cruel or unusual punishment.
• It should not be used to inflict wanton pain.
• Executions should be carried out in a
dignified manner.
• The death penalty is an extreme sanction to
be used to express society’s moral outrage.
Death Penalty (cont’d)
• Atkins v. Virginia (2002)
- Executions of the mentally impaired is unconstitutional.
The USSC attempted to bring U.S. policy in line with that
of other nations’ practices.
• Roper v. Simmons (2005)
- No execution of minors is allowed. The age of a person
must be taken into account at the time the offense was
committed. Children are not fully functional in thought
processes.
- Death sentences automatically commuted for those who
committed crimes at ages under 18.
XI. Property Rights
A. 5th Amendment’s eminent domain power (Takings
Clause) allows the government to seize private
property under two conditions:
- Must be for “public use.”
- Owner must be given a fair price in exchange.
B. During time of war the gov’t may take property
deemed essential for the war effort:
(e.g. ships/boats for naval use; factories for war
goods productions; higher tax rates on income)
Kelo v. New London (2005)
• The City of New London
wanted to condemn a lower
class neighborhood, with no
blight, and give it to a land
developer who would raze it
and build high value
townhomes on the same sight
which would raise more
property tax revenue which
could be used to pay for
critical city needs.
Kelo v. New London (cont’d)
• Issue: Can local gov’t use its
eminent domain power to seize
private property and give it to
another private entity for the
“public good”? The Constitution
says “use”, not “good.”
• Decision: Yes, according to the
USSC. The increased taxes
would have direct public benefit
so therefore “public good” was
synonymous with “public use.”
XII. 2nd Amendment - Bearing Arms
•
Up until 2010 the 2nd Amendment was not
incorporated by the states which had various laws and
interpretations of what the amendment said and how it
was to be implemented.
• In District of Columbia v. Heller, the USSC
interpreted the 2nd as a “personal right” to possess a
firearm and not the retention of such weapons for
militia use. DC had banned handguns and required all
other firearms to be kept unloaded and disassembled
or trigger-locked.
• It affirmed the right of Americans to own guns for
personal use and keep them at home for self-defense.
McDonald v. Chicago (2010)
• Issue: Does the 2nd Amendment apply to the
states because it is incorporated by the 14th
Amendment’s Due Process and Privileges and
Immunities clauses?
• Decision: Yes. The Court ruled that the 14th
Amendment makes the right to keep and bear arms
for the purpose of self-defense applicable to the
states.
- Such rights are “fundamental to the Nation’s
scheme of ordered liberty” and “deeply rooted
in the Nation’s history and tradition.”
End of Unit 13