Unit Three: Lesson 18

1. Unit Three: Lesson 18 How has the Due Process Clause of the 14th Amendment changed the Constitution?

2. Essays for Unit Three Test • 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? • How and why has suffrage been expanded in the US? • 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, life-tenured branch of government overturning laws passed by a democratically elected body of government?

3. Unit Three Vocabulary • Amendment Literacy Test • Delegated Powers Platform • Due Process of Law Political Party • Enfranchisement Procedural Due Process • Equality of Condition Sedition • Equality of Opportunity Separate But Equal • Grandfather Clause Substantive Due Process • Judicial Review Ticket

4. What is due process of law? • Due Process is an ancient concept but the Magna Carta is one of the earlier British examples • “by the law of the land” meant even the King/government had to follow the laws set forth • John Locke argued the purpose of government was to protect life, liberty and property • 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 • Limits only the national government • 14th Amendment extends DUE PROCESS to the states

5. 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 • 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

6. Procedural rights important to an adversarial legal system • US courts are “ADVERSARIAL” which means there are opposing parties in all cases • 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

7. Substantive Due Process • 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: • 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

8. 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 • 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

9. Doctrine of Incorporation • 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 • 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 • 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

10. Refused to Incorporate • 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: • 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

11. Review • 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 Anti-Federalists regarding the power of the national judiciary (lesson 13)? Explain