1. Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program American Constitutional Law LAW-210 Due Process

2. Unit Objectives At the completion of this unit, students should be able to: 1. Explain the relationship of the Magna Carta and the English Bill of Rights to the concept of due process. 2. Distinguish substantive due process from procedural due process. 3. Explain the terms person, liberty, and property as they are used in the Fifth and Fourteenth Amendments. 4. Determine if private conduct is regulated by the Due Process Clauses. 5. Explain the standards used by the Supreme Court when it reviews a law for substantive due process violations.

3. Unit Objectives (Continued) 6. Describe some of the liberty interests protected by substantive due process. 7. Describe the property interests protected by substantive due process. 8. List the procedures required by the Due Process Clause in criminal cases. 9. List the procedures required by the Due Process Clause in civil lawsuits. 10. Describe the basic requirements for due process whenever the government deprives a person of life, liberty, or property.

4. Due Process Introduction The Fifth and Fourteenth Amendments prohibit federal and state governments from depriving a person of life, liberty, or property without due process of law. The Fifth and Fourteenth Amendments prohibit federal and state governments from depriving a person of life, liberty, or property without due process of law. The concept of due process did not originate with the Constitution – it was an important part of: The concept of due process did not originate with the Constitution – it was an important part of: The Magna Carta, where it was referred to as the “law of the land”, and The Magna Carta, where it was referred to as the “law of the land”, and The subsequent English document, the English Bill of Rights. The subsequent English document, the English Bill of Rights. -Both documents contained provisions limiting the right of the King to imprison individuals or to seize property

5. Due Process Overview The Due Process Clauses provide two types of protections: 1. Substantive due process, which limits the types of laws that government can enact. -No law or government process should be arbitrary or unfair. 2. Procedural due process, which limits the procedures that government uses when it actually deprives a person of life, liberty, or property. -“Due process” varies from situation to situation, but the core of the idea is that a person should always have notice and a real opportunity to present his or her side in a legal dispute (opportunity to be heard).

6. Persons The term person includes individuals residing in the United States, whether they are citizens or not, and also includes corporations when an economic interest is involved, but not when a personal freedom is involved. The term person includes individuals residing in the United States, whether they are citizens or not, and also includes corporations when an economic interest is involved, but not when a personal freedom is involved.

7. Hamdi v. Rumsfeld 531 U.S. 98 (2004) Casenotes Casenotes Casenotes Held that: Held that: The government violated an American citizen’s Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who fought against the United States. The government violated an American citizen’s Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who fought against the United States. The separation of powers doctrine does not require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"? The separation of powers doctrine does not require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"?

8. Liberty The term liberty includes not only freedom from physical restraint but also freedom to enter into contracts and freedom to make many personal choices. The term liberty includes not only freedom from physical restraint but also freedom to enter into contracts and freedom to make many personal choices.

9. Liberty and Property Liberty Interests Freedom from physical restraints Freedom from physical restraints Freedom to contract (economic liberty) Freedom to contract (economic liberty) Freedom of personal choice Freedom of personal choice Property Interests Real property Personal Property Government benefits Government employment Driver’s license Right to attend school

10. Supreme Court Tests for Reviewing Economic Laws for Substantive Due Process Violations Older View [Lochner v. New York (1905)] Current View 1. Law must serve legitimate state interest, and 2. Have a rational basis for serving that interest 1. Law must have a legitimate state interest, and 2. Not be arbitrary or irrational

11. Examples of Restrictions on Economic Liberties Law Liberty Restriction State Interest Minimum wage Freedom of employer to contract with employees Economic protection of workers; makes sure that workers receive living wage Child labor laws Freedom of employer to contract with employees; freedom of minors to work Protection of children Workers’ compensation laws Freedom of employer to contract with employees Economic protection of those who are unable to work

12. Examples of Restrictions on Economic Liberties (Continued) Law Liberty Restriction State Interest Collective bargaining Freedom of employers to choose whom to negotiate with; freedom of employees to choose bargaining representatives Protection of stable workforce Price controls Freedom of those who produce and sell goods to fix a price Protection of general economy

13. Liberty – An Historical Perspective 1872 Liberty includes only protection against vestiges of slavery (Slaughter-House Cases) 1905 Liberty includes economic freedoms such as freedom to contract (Lochner v. New York) 1960sand1970s Liberty includes personal freedoms such as freedom to marry (Loving v. Virginia), contraception (Griswold v. Connecticut), and abortion (Roe v. Wade) 1990 Liberty includes the right to reject medical treatment (Cruzan v. Director, Missouri Dept. of Health) 2002 Liberty includes civil commitments (Kansas v. Crane) 2003 Liberty includes intimate sexual conduct between same-sex couples (Lawrence v. Texas)

14. Duke Power Co. v. Carolina Environmental Study Group 438 U.S. 59 (1978) Casenotes Casenotes Casenotes Issue: Substantive due process in deprivation of property. Issue: Substantive due process in deprivation of property. Held that: Held that: The Price-Anderson Act, the dual purpose of which was to protect the public and encourage the development of the nuclear power industry, and which provided for strict but limited liability in the event of a nuclear accident, did not unconstitutionally violate the Due Process and Just Compensation Clauses. The Price-Anderson Act, the dual purpose of which was to protect the public and encourage the development of the nuclear power industry, and which provided for strict but limited liability in the event of a nuclear accident, did not unconstitutionally violate the Due Process and Just Compensation Clauses.

15. Procedural Due Process Government action must provide adequate and fair procedures when it intentionally or recklessly deprives a person of life, liberty, or property. Government action must provide adequate and fair procedures when it intentionally or recklessly deprives a person of life, liberty, or property. A deprivation of liberty occurs if a person has been imprisoned, deprived of physical movement, or suffers a loss of another significant freedom. A deprivation of liberty occurs if a person has been imprisoned, deprived of physical movement, or suffers a loss of another significant freedom. A deprivation of property occurs if there is a reasonable expectation of continued receipt of a benefit (an entitlement) and that entitlement is unfulfilled. A deprivation of property occurs if there is a reasonable expectation of continued receipt of a benefit (an entitlement) and that entitlement is unfulfilled. Two-part analysis: Two-part analysis: 1. Was there a deprivation of life, liberty, or property? 2. What procedures are necessary?

16. Procedural Due Process Requirements Procedural Due Process usually requires: Procedural Due Process usually requires: 1. Notice of proposed taking, and 2. Opportunity for a fair hearing conducted by an impartial panel with opportunity for cross-examination of witnesses. The procedures that the government must specifically employ are determined by balancing the interests. The test considers: The procedures that the government must specifically employ are determined by balancing the interests. The test considers: 1. The interest that the individual is trying to protect. 2. The interest that the government is seeking to further. 3. The administrative and fiscal burdens on the government of alternative procedures.

17. Due Process in Criminal Cases Most of the procedures required by the Due Process Clause in criminal cases are found in the Bill of Rights. Most of the procedures required by the Due Process Clause in criminal cases are found in the Bill of Rights. These procedures basically require that arrest, interrogation, trial, and sentencing procedures must be fair. These procedures basically require that arrest, interrogation, trial, and sentencing procedures must be fair.

18. City of Chicago v. Morales 527 U.S. 41 (1999) Casenotes Casenotes Casenotes Issue: Unconstitutional vagueness of statute prohibiting loitering. Issue: Unconstitutional vagueness of statute prohibiting loitering. Held that: Held that: Chicago's Gang Congregation Ordinance was unconstitutionally vague and provided law enforcement officials too much discretion to decide what activities constitute loitering. Chicago's Gang Congregation Ordinance was unconstitutionally vague and provided law enforcement officials too much discretion to decide what activities constitute loitering. The ordinance's definition of loitering as "to remain in any one place with no apparent purpose" does not give people adequate notice of what is prohibited and what is permitted, even if a person does not violate the law until he refuses to disperse. The ordinance's definition of loitering as "to remain in any one place with no apparent purpose" does not give people adequate notice of what is prohibited and what is permitted, even if a person does not violate the law until he refuses to disperse.

19. In re Gault 387 U.S. 1 (1967) Casenotes Casenotes Casenotes Issue: Procedural due process requirements for juvenile proceedings. Issue: Procedural due process requirements for juvenile proceedings. Held that: Held that: Delinquency proceedings for juveniles must comply with the requirements of the Fourteenth Amendment. Delinquency proceedings for juveniles must comply with the requirements of the Fourteenth Amendment. These requirements included adequate notice of charges, notification of both the parents and the child of the juvenile's right to counsel, opportunity for confrontation and cross- examination at the hearings, and adequate safeguards against self- incrimination. These requirements included adequate notice of charges, notification of both the parents and the child of the juvenile's right to counsel, opportunity for confrontation and cross- examination at the hearings, and adequate safeguards against self- incrimination.

20. Due Process in Civil Cases Notice Notice Jurisdiction of a state over nonresident defendants Jurisdiction of a state over nonresident defendants Prejudgment attachment of property Prejudgment attachment of property Burden of proof required at trial Rights of indigent parties Punitive damages In addition to the question of jury trials, procedural due process issues in civil lawsuits concern: