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 Substantive 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