UNIT THREE: LESSON 18
How has the Due Process Clause of
the 14th Amendment changed the
Constitution?
ESSAYS FOR UNIT THREE TEST
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What are the basic purposes of the 14th Amendment?
How are questions left unresolved at the Philadelphia Convention
addressed in the 14th Amendment?
 How are the due process and equal protection clauses of the 14th
Amendment related to principles of limited government?
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How and why has suffrage been expanded in the US?
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Why has the expansion of suffrage been controversial?
How have advocates of expanded suffrage used their rights under
the 1st Amendment to achieve their goals?
What are the major arguments for and against
JUDICIAL REVIEW?
Alexander Hamilton claimed in Federalist No. 78 that “the
interpretation of the laws is the proper and peculiar province of the
courts.” Do you agree or disagree? Why?
 What are the advantages and disadvantages of an appointed, lifetenured branch of government overturning laws passed by a
democratically elected body of government?
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UNIT THREE VOCABULARY
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Amendment
Literacy Test
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Delegated Powers
Platform
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Due Process of Law
Political Party
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Enfranchisement
Procedural Due Process
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Equality of Condition
Sedition
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Equality of Opportunity Separate But Equal
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Grandfather Clause
Substantive Due Process
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Judicial Review
Ticket
WHAT IS DUE PROCESS OF LAW?
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Due Process is an ancient concept but the Magna
Carta is one of the earlier British examples
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John Locke argued the purpose of government
was to protect life, liberty and property
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“by the law of the land” meant even the King/government had to
follow the laws set forth
Belief about what was fair and just when government is making
rulings about life, liberty and property are ever evolving
The 5th Amendment contains the DUE PROCESS
clause
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Limits only the national government
14th Amendment extends DUE PROCESS to the states
WHAT IS PROCEDURAL DUE PROCESS?

Due Process means that government officials
must follow recognized procedures and not act
arbitrarily
PROCEDURAL DUE PROCESS requires the government to
act in certain ways before they regulate or take life, liberty or
property
 PRECEDURAL DUE PROCESS require the government to
treat citizens equally under the law
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Due Process guarantees apply to both criminal
and noncriminal (civil) matters
Federal and state governments create the procedures
 School discipline rules
 Fair Hearings, opportunity to present evidence, appeal
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PROCEDURAL RIGHTS IMPORTANT TO
AN ADVERSARIAL LEGAL SYSTEM
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US courts are “ADVERSARIAL” which means there are
opposing parties in all cases
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Justice is most likely served when there is a clash between opposing parties
Both sides gather evidence/witnesses to support their side and work to
expose the weaknesses of the other side
In a criminal cases, where a person’s life, liberty or property
is at stake, it is assumed a person is innocent until proven
guilty beyond a reasonable doubt
In a civil case, where a person’s wealth is at stake, the
burden of proof is lower. The jury sides with the
preponderance of evidence. Both sides try to win.
In contrast, the “INQUISITIONAL” system, judges act as
investigators and decision makers. Those who support this
type of system believe it is fairer because the quality of the
lawyer is not an issue. They also believe it supports the
truth, rather than trying to win
SUBSTANTIVE DUE PROCESS
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Substantive Due Process recognizes that some laws are wrong no
matter how popular they may be. The government must have an
overwhelming compelling reason to interfere or regulate peoples’
rights
Substantive Due Process requires the content of the law to be fair
and reasonable
The role of the Courts is to interpret the Constitution and ensure
fundamental rights are not violated
The Courts view the following as FUNDAMENTAL RIGHTS:
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The right to marry and have children
The right to purchase and use birth control
The right to custody of one’s own children and rear them as you see fit
The right to free speech
The right to interstate travel
The right of legal voters to vote
The right of free association
The right to religious freedom
EXAMPLE OF DUE PROCESS

Procedural Due Process
A citizen (Latino) in Walla Walla is convicted of
robbery and is sentenced to 15 years
 A citizen (Caucasian) in Seattle is convicted of
robbery and is sentenced to 5 years
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Substantive Due Process
A law is passed that revokes the drivers license of all
red headed drivers
 A law is passed that revokes the drivers license of all
drivers over the age of 70
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DOCTRINE OF INCORPORATION
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Even after the 14th Amendment’s promise of “DUE PROCESS,”
states led the way in interpreting and protecting fundamental rights
In 1925, the Supreme Court began to revisit the interpretation of
due process and equal justice
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Gitlow v. New York (1925) recognized that states could not interfere with
free speech and free press rights. Personal rights were protected by the due
process clause and states could not limit these rights
This case began the process known as INCORPORATION, using the 14th
Amendment’s Due Process clause to decide whether rights guaranteed limit
the state or federal governments.
Since that time, the Supreme Court has used the 14th Amendment to protect
individual rights from government infringement. The 1st Amendment rights
were protected from state interference (speech, press religion, assembly &
press). The rest are determined using selective incorporation
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Selective incorporation – case by case, the Supreme Court rules
The Supreme Court was less willing to completely protect the rights of the
accused (4th – 8th), because the states had a greater responsibility in
enforcing the law
REFUSED TO INCORPORATE
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Selective Incorporation has solidified the rights
guaranteed in the 4th-8th Amendments
The Supreme Court has refused to incorporate or has not
yet considered whether to incorporate the following rights:
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2nd Amendment Right to Bear Arms
5th Amendment Right to indictment by a Grand Jury
7th Amendment Right to Jury Trial in Civil Lawsuits
6th Amendment (implied) Right to a Jury of 12 that must reach a
unanimous decision
REVIEW
1)
2)
3)
4)
5)
Explain the difference between procedural and
substantive due process. Is one more important
than the other?
What are the major differences between an
adversarial and inquisitorial system of justice?
What is the relationship between substantive
due process and fundamental rights?
What is the process of selective incorporation?
Has incorporation of the Bill of Rights in the
states validated the fears of the AntiFederalists regarding the power of the national
judiciary (lesson 13)? Explain