US Government
Unit 2
Reading Guide 4
Notes
A. Explain the meaning of due process of law as set out in the 5th and 14th amendments.
Due Process: In whatever it does, government must act fairly and in accord with established
rules. It may not act unfairly, arbitrarily, or unreasonably.
Arbitrary: with unlimited power.
The government must act in a fair manner, but what if those laws are unfair?
Procedural due process: has to do with how (the procedures, the methods) of
governmental action.
Substantive due process: involves the what (the substance, the policies) of governmental
action.
Examples of Procedural Due Process
1. Rochin v. California 1952
Rochin was a suspected narcotics dealer. Three L.A. County deputy sheriffs went to his
rooming house. They forced their way into his room, found him on his bed, saw two capsules on his
nightstand. A deputy asked “Whose stuff is this?” Rochin grabbed and swallowed the pills. The officers
jumped on him trying to pull the pills out of his mouth.
They then took Rochin to the hospital, where they ordered his stomach to be pumped. The
capsules were recovered and found to contain morphine. Rochin was then prosecuted and convicted.
The Supreme Court unanimously held that the deputies violated the 14th Amendment’s guarantee
of procedural due process. They said:
“This is conduct that shocks the conscience. Illegally breaking into the privacy of the
petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his
stomach’s contents—this course of proceeding by agents of government to obtain evidence is bound to
offend even hardened sensibilities. They are methods too close to the rack and the screw… Justice Felix
Frankfurter”
2. Pierce v. Society of Sister 1925
Oregon voters adopted a law requiring all persons between 8 and 16 to attend public
schools. The law was purposely written to destroy private, especially religious schools in the State.
A Roman Catholic school challenged the law’s constitutionality, and the Supreme Court
held that this law violated the 14th Amendment’s Due Process Clause. The Court did not find that the
State had enforced the law unfairly. Rather, it held that the law itself, in its contents, interferes with the
right of the parent in upbringing and education of children under their control.
B. What is the relationship between Police power and Civil Rights?
1. Police Power: the authority of each State to act to protect and promote the public health,
safety, morals, and general welfare.
Or, it is the power of each State to safeguard the wellbeing of its people.
2. Describe the balance the courts must strike between police power and civil rights.
Courts must balance between the needs of the society on one hand, and of individual
freedoms on the other.
3. How States promote health, safety, morals, and general welfare.
Health: States can limit the sale of alcohol, tobacco, make laws fighting pollution, and
require vaccination of schoolchildren.
Safety: States can regulate the carrying of concealed weapons, require the use of seat
belts, and punish drunk drivers.
Morals: States can regulate gambling, outlaw the sale of obscene materials and outlaw
prostitution.
Welfare: States can enact compulsory education laws, provide help for the medically
needy, and limit the profits of public utilities.
C. Explain the intent and application of the 2nd Amendment’s protection of the right to keep and bear
arms.
1. “A Well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.”
A. Does this amendment only protect the right of each State to keep a militia, meaning
does it protect the State from encroachments by the Federal Government?
B. Does the 2nd Amendment protect and individual’s right to keep and bear arms?
2. Court rulings on the 2nd Amendment
A. United State v. Miller, 1939 Upheld a section of the National Firearms Act of 1934
that made it a crime to ship sawed-off shotguns or submachine guns across state lines.
B. District of Columbia v. Heller, 2008. There is a guarantee of the right of indiviuals to
keep and bear arms for self-defense.
C. McDonald v. Chicago 2010, the Court added the 2nd Amendment to the 14th Due
Process Clause.
D. Explain the constitutional provisions designed to guarantee security of home and person.
1. 3rd Amendment forbids the quartering of soldiers in private homes in peacetime without the
owner’s consent and not in wartime except “in a manner to be prescribed by law.”
Why was this amendment added? It has never been violated in US History
2. The 4th Amendment was designed to prevent a blanket search warrant such as the writs of
assistance.
It protects each private home from illegal searches. This now applies to all through the
th
14 Amendment’s Due Process Clause.
3. To protect you and your home, this amendment requires police power to have a warrant
obtained by probable cause. Police do not need a warrant if the evidence is in plain view.
A. An arrest is the seizure of a person. When officers make a lawful arrest, they do not
need a warrant to search “the area from within which [the suspect] might gain possession of a weapon or
destructible evidence”
B. In Illinois v. Wardlow, 2000, Four police officers chased Wardlow down after he ran
while the police were patrolling a high-crime area in Chicago. They found a loaded pistol on him, he was
arrested and charged. The Court held, 5-4, that Wardlow’s behavior—his flight—gave the police
“common sense” grounds on which to believe that he was involved in some criminal activity. The police
do not have blanket power to stop anyone who flees at the sight of a police officer.
C. When does the 4th Amendment protect an individual from police power? The Court
has held that this point is reached “only when the officer, by means of physical force or show of authority,
has in some way restrained the liberty of a citizen,” Terry v. Ohio, 1968.
D. Automobiles and the 4th Amendment. California v. Acevedo, 1991. Whenever police
lawfully stop a car, they do not need a warrant to search anything in that vehicle that they have reason to
believe holds evidence of a crime. “Anything” includes a passenger’s belongings, Wyoming v. Houghton,
1999.
E. Challenges to the 4th Amendment and Exclusionary Rule
1. Drug Testing. The Court has upheld mandatory testing for officers of the US
government. They have also recently upheld drug testing by school districts.
2. Patriot Act. The law provides for greatly increased governmental powers to
combat domestic and international terrorist activities. It focuses on surveillance and investigation,
immigration, and financing terrorist groups.
3. The Patriot Act allows for “sneak-and-peek searches.” Fed agents acting
under a warrant, may enter a person’s home or office when no one is present and conduct a search.
4. Wiretapping. Electronic eavesdropping. The NSA acting in secret and
without court-approved warrants, to monitor the international telephone calls and emails of Americans
with suspected ties to terrorists.