U N I T 3

AMERICAN GOVERNMENT

LESSON 18PAGES 123-128

How has the Due Process Clause of the 14th Amendment changed the Constitution?

• Objective: Explain the historical origins of due process. Explain the differences between procedural and substantive due process. Define the concept of incorporation and describe its effect on the powers of the states.

WHAT IS DUE PROCESS OF LAW?

• Governments, like everyone else, must obey the law. Government must follow known & established procedures and not act arbitrarily, or unpredictably in negatively altering or destroying life, liberty or property.

• 5th Amendment- first reference to due process of law in our Constitution. Only requires the national government to follow due process.

WHAT IS DUE PROCESS OF LAW?

• Other provisions for due process: • Ex post facto laws• 14th Amendment- applies it to the states

What is procedural due process?

• Requires government officials to act in certain ways before they regulate or take life, liberty or property.

• Applies to criminal and noncriminal matters.

• Property is a broad term. • Everything that a person can own. • Tangible- land and buildings • Intangible- copyrights, patents, jobs, welfare,

unemployment benefits, reputations.

What is procedural due process?

• Due process guarantees include the requirement of notice, the opportunity for a fair hearing, the opportunity to present evidence and an appeal of an initial decision.

Why are procedural rights important in an adversary legal system?

• USA & England- adversary system of justice. Opposing parties in all cases. • Both sides gather evidence• Try to persuade a neutral judge or jury• In a criminal case- assumes defendant is innocent until

proven guilty “beyond a reasonable doubt”.• In civil cases- burden of proof is much lower.

Why are procedural rights important in an adversary legal system?

• Most European countries use the inquisitorial system- • Judge acts as the investigator and makes the decision

(prosecutor & judge)• Fewer jury trials• Fewer lawyers • Court proceedings are much shorter

Why are procedural rights important in an adversary legal system?

• Supporters of inquisitorial system:• Adversary system assumes both lawyers are of equal

ability and resources• Both sides trying to win and are not concerned with the

truth in the adversary system.

• Supporters of adversary system:• Inquisitorial system gives too much unrestrained power

to judges and judicial institutions• Trial by jury of peers is more impartial than a trial by

members of government.

What is substantive due process?

• Constitution usually prohibits some kinds of laws all together. • Some rights are so fundamental that the government must have

“compelling” or “exceedingly important reasons” to regulate or interfere with them.

• These rights predate the government.• These include:• Right to marry • Right to have children • Right to custody of your children• Right to purchase and use birth control • Right of mentally competent adults to refuse medical treatment• Free speech• Interstate travel• Vote• Association • Religious freedom

What is the Doctrine of Incorporation?

• 14th Amendment technically required the states to follow the Bill of Rights and follow due process of law.

• For years after this Amendment is ratified the national government was leery of forcing the states to do so and relied on them to follow this part of the Constitution on their own.

• Then Gitlow v. New York occurs in 1925.

What is the Doctrine of Incorporation?

• Gitlow v. New York- free speech and press case.• In this case the court said that each right in the Bill of

Rights would be incorporated to the states through individual court cases.

• Gitlow is just the beginning.

• Today the court is not as reluctant- most of the provisions of the Bill of Rights have been incorporated through court cases.

What is the Doctrine of Incorporation?

• Not incorporated:

• 2nd Amendment• 5th Amendment – right to an indictment by grand jury• 7th Amendment- right to jury trial in civil lawsuits• 6th Amendment- the implicit requirement that the jury in

a criminal case must have 12 members and a unanimous verdict

FINISHING UP!

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