Yet since then, the Supreme Court has elaborated significantly on this core understanding. The key questions are: What procedures satisfy due process? Historically, due process ordinarily entailed a jury trial. The jury determined the facts and the judge enforced the law.
In past two centuries, however, states have developed a variety of institutions and procedures for adjudicating disputes. Making room for these innovations, the Court has determined that due process requires, at a minimum: 1 notice; 2 an opportunity to be heard; and 3 an impartial tribunal.
Mullane v. Central Hanover Bank In the case of Goldberg v. Mathews v. Eldridge The Bill of Rights—comprised of the first ten amendments to the Constitution—originally applied only to the federal government. Barron v. Baltimore Those who sought to protect their rights from state governments had to rely on state constitutions and laws.
One of the purposes of the Fourteenth Amendment was to provide federal protection of individual rights against the states. Early on, however, the Supreme Court foreclosed the Fourteenth Amendment Privileges or Immunities Clause as a source of robust individual rights against the states. The Slaughter-House Cases A celebrated debate about incorporation occurred between two factions of the Supreme Court: one side believed that all of the rights should be incorporated wholesale, and the other believed that only certain rights could be asserted against the states.
While the partial incorporation faction prevailed, its victory rang somewhat hollow. As a practical matter, almost all the rights in the Bill of Rights have been incorporated against the states. The idea is that certain liberties are so important that they cannot be infringed without a compelling reason no matter how much process is given.
The concern is that five unelected Justices of the Supreme Court can impose their policy preferences on the nation, given that, by definition, unenumerated rights do not flow directly from the text of the Constitution. The case of Lochner v. When the Court repudiated Lochner in , the Justices signaled that they would tread carefully in the area of unenumerated rights. West Coast Hotel Co. Parrish Substantive due process, however, had a renaissance in the mid-twentieth century.
In the wake of Griswold , the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry , the right of unmarried individuals to use contraception , the right to abortion , the right to engage in intimate sexual conduct , and the right of same-sex couples to marry The Court has also declined to extend substantive due process to some rights, such as the right to physician-assisted suicide The proper methodology for determining which rights should be protected under substantive due process has been hotly contested.
In , Justice Harlan wrote an influential dissent in Poe v. Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.
But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Amendment XV Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Amendment XVI The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.
The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures. When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.
For instance, the Court has ruled that the Due Process Clause protects rights that are not specifically listed in the Constitution, such as the right to privacy regarding sexual relations.
In Roe v. Wade , the Court ruled that this right to privacy included a woman's decision to have an abortion. All laws discriminate, because governments must make choices about what is lawful.
For example, a law that prohibits burglary discriminates against burglars. In certain areas where there has been a history of past wrongful action—such as discrimination based on race or gender—the state must meet a much higher burden to justify such classifications. Racial discrimination has a long and pernicious history in the United States. In Plessy v. Accordingly, the Due Process Clause would not apply to a private school taking discipline against one of its students although that school will probably want to follow similar principles for other reasons.
But as modern society developed, it became harder to tell the two apart ex: whether driver's licenses, government jobs, and welfare enrollment are "rights" or a "privilege. Process was due before the government could take an action that affected a citizen in a grave way.
Two Supreme Court cases involved teachers at state colleges whose contracts of employment had not been renewed as they expected, because of some political positions they had taken. Were they entitled to a hearing before they could be treated in this way? The other teacher worked under a longer-term arrangement that school officials seemed to have encouraged him to regard as a continuing one. Licenses, government jobs protected by civil service, or places on the welfare rolls were all defined by state laws as relations the citizen was entitled to keep until there was some reason to take them away, and therefore process was due before they could be taken away.
In its early decisions, the Supreme Court seemed to indicate that when only property rights were at stake and particularly if there was some demonstrable urgency for public action necessary hearings could be postponed to follow provisional, even irreversible, government action. This presumption changed in with the decision in Goldberg v. Kelly , a case arising out of a state-administered welfare program. The Court found that before a state terminates a welfare recipient's benefits, the state must provide a full hearing before a hearing officer, finding that the Due Process Clause required such a hearing.
Just as cases have interpreted when to apply due process, others have determined the sorts of procedures which are constitutionally due. This is a question that has to be answered for criminal trials where the Bill of Rights provides many explicit answers , for civil trials where the long history of English practice provides some landmarks , and for administrative proceedings, which did not appear on the legal landscape until a century or so after the Due Process Clause was first adopted.
Because there are the fewest landmarks, the administrative cases present the hardest issues, and these are the ones we will discuss. The Goldberg Court answered this question by holding that the state must provide a hearing before an impartial judicial officer, the right to an attorney's help, the right to present evidence and argument orally, the chance to examine all materials that would be relied on or to confront and cross-examine adverse witnesses, or a decision limited to the record thus made and explained in an opinion.
The Court's basis for this elaborate holding seems to have some roots in the incorporation doctrine. Many argued that the Goldberg standards were too broad, and in subsequent years, the Supreme Court adopted a more discriminating approach.
A successor case to Goldberg, Mathews v. Eldridge , tried instead to define a method by which due process questions could be successfully presented by lawyers and answered by courts.
The approach it defined has remained the Court's preferred method for resolving questions over what process is due. Mathews attempted to define how judges should ask about constitutionally required procedures. The Court said three factors had to be analyzed:.
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