Due Process of Law

What has to happen for our life, liberty, or property to be taken?

Types of Due Process

Substantive Due Process

• Allows courts to protect certain fundamental rights from government inference

• Even if the rights are not specifically mentioned elsewhere in the US Constitution

9th Amendment Protections

Procedural Due Process

• Requires government officials to follow fair procedures before depriving a person of life, liberty, or property.

• 4th, 5th, 6th, and 8th Amendment.

4th Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Probable Cause

The standard set by the 4th Amendment for a search warrant to be issued.

• Must explain the crime that is suspected.

• The evidence already gathered from other sources.

• Specific People, Places, and Items that will be subject to search.

Mapp v. Ohio (1961)

Reasonable Suspicion

Established in Terry v. Ohio (1968)

• Pat down

The Courts created a lower standard for a law enforcement officer to conduct a stop and investigate based on reasonable suspicion.

Less than probable cause, but must be more than a “hunch”.

The Surveillance State

After the 9/11 attacks, Congress passed the USA Patriot Act.

• This expanded federal power to collect information to prevent acts of terror.

• Expanded the FISA court system for secret search warrants.

• Allowed the National Security Agency (NSA) to conduct mass surveillance on US citizens in secret.

  • Focused on collecting phone data, text messages, email, GPS data, library records, ISP data.

• Leaked by Edward Snowden, and has been scaled back as of 2018.

5th Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Grand Jury Indictment

In federal crimes, a Grand Jury is formed to hear all of the evidence against you and decide if the government is allowed to charge you with a crime based on that evidence.

This has not been incorporated by the courts to the states. Some states require Grand Jury for some types of crimes, but it is not uniform.

Double Jeopardy

Protection from multiple prosecutions over the same charge. The state only gets one chance to find you guilty.

This does not apply to an activity that might break both state and federal law. Those would be two different charges and therefore not double jeopardy.

Self Incrimination

The protection against having to serve as a witness against yourself.

You cannot be compelled or forced to provide evidence against yourself in the form of a confession.

“You have the right to remain silent.”

Eminent Domain

The process in which the government takes your property for public use and justly compensates you for it.

Building a highway through a farm.

Running water lines through a neighborhood.

Building a barrier along the border.

Miranda v Arizona

6th Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Some parts of the 6th have not been incorporated to the states.

Gideon v Wainwright

7th Amendment

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

This has not been incorporated to the states.

8th Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Timbs v Indiana

Gregg v Georgia & Furman v Georgia

Due process are the rules the government must follow if it wishes to take your rights. The burden is on the state to prove you have committed a violation, and it is deserving of punishment.

The 14th Amendment and Abortion Rights

Griswold v Connecticut (1965) State bans on contraceptives violate the privacy of family planning decisions. Implied right to privacy (1st, 3rd, 4th, and 9th Amendments);

Roe v Wade (1973) State bans on abortion violated the 14th Amendment equal protection clause and 9th Amendment unenumerated rights. States can regulate abortion in the 2nd Trimester and Ban in the 3rd.

Planned Parenthood v Casey (1992) Created the “undue burden” standard for striking down state restrictions on women obtaining an abortion.

Dobbs v Jackson Women’s Health Organization (2022) Mississippi passed a ban on all abortions after 15 weeks with no allowance for incest or the health of the mothers.

Court overturned a 50 year precedent set in Roe v Wade and removed the right, upholding Mississippi’s ban

Justice Alito’s Majority opinion called into question the right to privacy in personal decisions but didn’t extend the decisions beyond abortion.