The Due Process Clause of The Due Process Clause of The Fourteenth AmendmentThe Fourteenth Amendment

Unit 3, Lesson 18Unit 3, Lesson 18

What is Due Process?What is Due Process?• Requirement that a govt. must follow certain Requirement that a govt. must follow certain

rules & procedures before it can regulate an rules & procedures before it can regulate an individual’s life, liberty, or property.individual’s life, liberty, or property.

• Usually Applies to Civil & Criminal Law.Usually Applies to Civil & Criminal Law.

• Fifth AmendmentFifth Amendment only limits National Govt. only limits National Govt.

• Fourteenth AmendmentFourteenth Amendment limits state govts. limits state govts.

Procedural Due ProcessProcedural Due ProcessProcedures that Govt. must follow before it Procedures that Govt. must follow before it

regulate or take away life, liberty, or regulate or take away life, liberty, or property.property.

Procedural Rights in OurProcedural Rights in Our Adversary Adversary SystemSystem

• Adversary System: System of justice in U.S. & England = 2 opposing sides make arguments to persuade judge or jury to rule in their favor.

• Right to fair trial, defendant is innocent until proven guilty beyond a reasonable doubt.

Inquisitorial System of JusticeInquisitorial System of JusticeSpecially trained judges investigate by Specially trained judges investigate by

asking questions and making asking questions and making decisions.decisions.

Substantive Due ProcessSubstantive Due Process

• The Supreme Court can decide whether The Supreme Court can decide whether certain state or federal certain state or federal LAWSLAWS violate a violate a person’s person’s Fundamental Rights.Fundamental Rights.

• These rights are protected by the due These rights are protected by the due process clauses in the 5process clauses in the 5thth & 14 & 14thth Amendment.Amendment.

Doctrine of IncorporationDoctrine of Incorporation

• Process which the U.S. Supreme Court applies the due process clause of the Fourteenth Amendment to extend the Bill of Rights over the states. (Bread & Butter)

• Began with Gitlow v. New York (1925) = free-speech.

• Most of the Bill of Rights has been Most of the Bill of Rights has been incorporated over the states.incorporated over the states.

• The Supreme Court has refused, or has not The Supreme Court has refused, or has not yet, incorporated the following rights.yet, incorporated the following rights.

– Second: right to bear armsSecond: right to bear arms– Fifth: right to indictment by grand juryFifth: right to indictment by grand jury– Seventh: right to jury trial in civil lawsuits.Seventh: right to jury trial in civil lawsuits.– Sixth Amendment requirement that a jury in a Sixth Amendment requirement that a jury in a

must have 12 members & reach a unanimous must have 12 members & reach a unanimous verdict.verdict.