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U NIT T HREE : L ESSON 18 How has the Due Process Clause of the 14 th Amendment changed the Constitution?

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Presentation on theme: "U NIT T HREE : L ESSON 18 How has the Due Process Clause of the 14 th Amendment changed the Constitution?"— Presentation transcript:

1 U NIT T HREE : L ESSON 18 How has the Due Process Clause of the 14 th Amendment changed the Constitution?

2 E SSAYS FOR U NIT T HREE T EST What are the basic purposes of the 14 th Amendment? How are questions left unresolved at the Philadelphia Convention addressed in the 14 th Amendment? How are the due process and equal protection clauses of the 14 th 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 1 st 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 U NIT T HREE V OCABULARY AmendmentLiteracy Test Delegated PowersPlatform Due Process of LawPolitical Party EnfranchisementProcedural Due Process Equality of ConditionSedition Equality of OpportunitySeparate But Equal Grandfather ClauseSubstantive Due Process Judicial ReviewTicket

4 W HAT 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 5 th Amendment contains the DUE PROCESS clause Limits only the national government 14 th Amendment extends DUE PROCESS to the states

5 W HAT IS P ROCEDURAL D UE P ROCESS ? 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 P ROCEDURAL 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 S UBSTANTIVE D UE P ROCESS 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 E XAMPLE OF D UE P ROCESS 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 D OCTRINE OF I NCORPORATION Even after the 14 th 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 14 th 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 14 th Amendment to protect individual rights from government infringement. The 1 st 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 (4 th – 8 th ), because the states had a greater responsibility in enforcing the law

10 R EFUSED TO I NCORPORATE Selective Incorporation has solidified the rights guaranteed in the 4 th -8 th Amendments The Supreme Court has refused to incorporate or has not yet considered whether to incorporate the following rights: 2 nd Amendment Right to Bear Arms 5 th Amendment Right to indictment by a Grand Jury 7 th Amendment Right to Jury Trial in Civil Lawsuits 6 th Amendment (implied) Right to a Jury of 12 that must reach a unanimous decision

11 R EVIEW 1) Explain the difference between procedural and substantive due process. Is one more important than the other? 2) What are the major differences between an adversarial and inquisitorial system of justice? 3) What is the relationship between substantive due process and fundamental rights? 4) What is the process of selective incorporation? 5) 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


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