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Unit 3, Lesson 18

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.

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Unit 3, Lesson 18

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  1. Unit 3, Lesson 18 How Has the Due Process Clause of the Fourteenth Amendment Changed the Constitution?

  2. Fifth Amendment No person shall be. . .deprived of life, liberty, or property, without due process of law."

  3. Fourteenth Amendment, §1 No State. . .shall any State deprive any person of life, liberty, or property, without due process of law. . .

  4. QuestionsEasy ones first. . . • Who is entitled to due process of law? • Who or what must provide due process? • When is due process of law required?

  5. 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"?

  6. 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.

  7. Meaning: Constitution Words imply fair procedure (“how” action is taken) Steps government must Use before taking away • Life • Liberty • Property

  8. Who decides process “due” • Policy makers make rules • Judges interpret constitutions (national/state)

  9. What are life, liberty, property? • Common sense meanings • Broader meanings Life Includes corporations Liberty includes movement and (past) contracts Property includes reputation, job, inventions

  10. 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

  11. Two additional dimensions of due process • Substantive due process • Incorporation of Bill of Rights

  12. “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

  13. 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

  14. “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?

  15. Supreme Court embraces “selective incorporation” • 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

  16. Future of due process • 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?

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