• During the drafting and ratification of the Constitution in 1787–88, the great fear was that a central government would be either too weak, like the government under the Articles of Confederation, or too strong and thus potentially tyrannical.

  • That concern was addressed only in a few clauses, which have been rarely invoked and more rarely applied—especially the Republican Form of Government Clause and the State Bill of Attainder Clause.

• With the postwar ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments, the states were now bound by federal constitutional strictures to secure certain freedoms to their own citizens, including the right of citizenship itself.

• The two provisions that would have the most far-ranging effects are both in Section One of the Fourteenth Amendment: “No State shall deny to any person due process of law or equal protection of the laws.”

  • It was clear that the drafters of the Fourteenth Amendment intended something more to keep former slave states from mistreating the freed slaves.

  • Initial interpretations of the Fourteenth Amendment resulted in more opinions about what it did not do than about what it did.

• A tradition of interpreting “due process” had begun by reading a similar clause in the Fifth Amendment, limiting the central government. This tradition equated “due process” to something like the procedural guarantees of Chapter Thirty-Nine of the Magna Carta in the English common law.

  • The most dramatic expansion of “due process” occurred, when the Court was willing to infer general principles underlying the language of the Bill of Rights and therefore conclude in 1965 that The Constitution incorporated a general principle of privacy.

• The Slaughterhouse Cases held that the amendment barred discrimination only against freedmen (emancipated slaves), not against the general population.

• The Civil Rights Cases held the Reconstruction Amendments to a narrow scope of statutes that would eradicate slavery and not broader acts of discrimination against former slaves.

• Much of the case law in the half-century from 1925 to 1975 was about which clauses of the Bill of Rights would be “incorporated” into the Fourteenth Amendment and thus made applicable to the states.

• The right to privacy includes marital and sexual privacy as expressed in limitations by the state to regulate the use of contraception (Griswold v. Connecticut, 38 U.S. 479 (1965)) and abortion (Roe v. Wade, 410 U.S. 113 (1973)).

• The root of the principle of privacy is the Fourth Amendment.

Exclusionary Rule

• The exclusionary rule is an American invention that requires the courts to exclude all evidence that is seized in the course of an unconstitutional search of papers, persons, or residential or business premises.

• Whether the search is unconstitutional depends first on whether it proceeds on the basis of a valid warrant issued by a magistrate or, if there is no warrant, the search is reasonable under all the circumstances. The latter clause is obviously vague and therefore has been the source of an enormous body of case law.

• Even before the Court considers whether the search is reasonable, it must decide whether the investigation producing the evidence is really a police “search” in the constitutional sense.

• If the search is conducted by private parties, it does not qualify for protection as state action under the due process clause.