Civil Rights and Liberties - United States Political History | Lecture notes Political history

Oklahoma State University – Oklahoma City

Civil Rights and Liberties - POLS 1320

Winter 2022

Lecture Notes Three

Contents: Due Process Rights and Criminal Justice

Lecture Notes Three

Due process is a requirement that legal matters be resolved according to established rules and

principles, and that individuals be treated fairly. Due process applies to both civil and criminal matters.

What is due process in the 5th Amendment?

One important aspect of the Fifth Amendment is known as “due process,” or the requirement that the

government cannot deprive a person of their freedom or property without going through the court

system.

What are the five steps of due process?

The Five Elements of “Due Process”

Equality: The system must not discriminate procedurally between parties. ...

Economy: The cost of access to the system must not be a barrier to its use or operate to the

disadvantage of one or the other parties:

Expedition:

Evidence:

Equity:

The Constitution states only one command twice. The Fifth Amendment says to the federal government

that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth

Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a

legal obligation of all states. These words have as their central promise an assurance that all levels of

American government must operate within the law ("legality") and provide fair procedures. Most of this

essay concerns that promise. We should briefly note, however, three other uses that these words have

had in American constitutional law.

The Fifth Amendment's reference to “due process” is only one of many promises of protection the Bill of

Rights gives citizens against the federal government. Originally these promises had no application at all

against the states (see Barron v City of Baltimore (1833)). However, this attitude faded in Chicago,

Burlington & Quincy Railroad Company v. City of Chicago (1897), when the court incorporated the Fifth

Amendment's Takings Clause. In the the middle of the Twentieth Century, a series of Supreme Court

decisions found that the Due Process Clause "incorporated" most of the important elements of the Bill

of Rights and made them applicable to the states. If a Bill of Rights guarantee is "incorporated" in the

"due process" requirement of the Fourteenth Amendment, state and federal obligations are exactly the

same.

The words “due process” suggest a concern with procedure rather than substance, and that is how

many--such as Justice Clarence Thomas, who wrote "the Fourteenth Amendment’s Due Process Clause is

not a secret repository of substantive guarantees against unfairness"--understand the Due Process

Clause. However, others believe that the Due Process Clause does include protections of substantive

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Oklahoma State University – Oklahoma City Civil Rights and Liberties - POLS 1320 Winter 2022 Lecture Notes Three Contents: Due Process Rights and Criminal Justice Lecture Notes Three Due process is a requirement that legal matters be resolved according to established rules and principles, and that individuals be treated fairly. Due process applies to both civil and criminal matters. What is due process in the 5th Amendment? One important aspect of the Fifth Amendment is known as “due process,” or the requirement that the government cannot deprive a person of their freedom or property without going through the court system. What are the five steps of due process? The Five Elements of “Due Process”  Equality: The system must not discriminate procedurally between parties. ...  Economy : The cost of access to the system must not be a barrier to its use or operate to the disadvantage of one or the other parties:  Expedition :  Evidence :  Equity : The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law ("legality") and provide fair procedures. Most of this essay concerns that promise. We should briefly note, however, three other uses that these words have had in American constitutional law. The Fifth Amendment's reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states (see Barron v City of Baltimore (1833)). However, this attitude faded in Chicago, Burlington & Quincy Railroad Company v. City of Chicago (1897), when the court incorporated the Fifth Amendment's Takings Clause. In the the middle of the Twentieth Century, a series of Supreme Court decisions found that the Due Process Clause "incorporated" most of the important elements of the Bill of Rights and made them applicable to the states. If a Bill of Rights guarantee is "incorporated" in the "due process" requirement of the Fourteenth Amendment, state and federal obligations are exactly the same. The words “due process” suggest a concern with procedure rather than substance, and that is how many--such as Justice Clarence Thomas, who wrote "the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness"--understand the Due Process Clause. However, others believe that the Due Process Clause does include protections of substantive

Oklahoma State University – Oklahoma City Civil Rights and Liberties - POLS 1320 Winter 2022 Lecture Notes Three Contents: Due Process Rights and Criminal Justice due process such as Justice Stephen J. Field, who, in a dissenting opinion to the Slaughterhouse Cases wrote that "the Due Process Clause protected individuals from state legislation that infringed upon their “privileges and immunities” under the federal Constitution. Field’s dissenting opinion is often seen as an important step toward the modern doctrine of substantive due process, a theory that the Court has developed to defend rights that are not mentioned in the Constitution." Substantive due process has been interpreted to include things such as the right to work in an ordinary kind of job, marry, and to raise one's children as a parent. In Lochner v New York (1905), the Supreme Court found unconstitutional a New York law regulating the working hours of bakers, ruling that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. Substantive due process is still invoked in cases today, but not without criticism (See this Stanford Law Review article to see substantive due process as applied to contemporary issues).

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