14Th Amendment Due Process

The 14th Amendment …nor shall any state deprive any person of life, liberty or property, without due process of law… “Due process” also appears in the Fifth Amendment and applies to the federal government. The Due Process clause • “A course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights” (Black’s Law Dictionary) The Due Process clause • The due process clause does not … The Due Process clause • Government CAN… • Government CANNOT… The Due Process clause • Our focus is going to be on “liberty.” • Traditional meaning of liberty... Substantive Due Process • Broaden the definition of liberty beyond just physical liberty. Substantive Due Process Change the meaning of due process. • Shift is away from… • Shift is to… Substantive Due Process Court will … Substantive Due Process What is the effect of substantive due process? • • S.D.P.-Two periods First period-Economic S.D.P. Approx. 1900-1937 S.D.P.-Two periods The result of discovering this liberty was that the Supreme Court could strike down laws attempting to regulate commerce. Conservative Court had a weapon to use against efforts to regulate the economy. S.D.P.-Two periods Second period-approx. 1973-present S.D.P.-Two periods The result of discovering this liberty was that the Supreme Court could strike down laws attempting to regulate personal decisions. Liberal Court had a weapon to use against efforts to regulate the behavior of individuals. S.D.P.-How it works… • We see this in right to privacy cases and we will see this process in other cases later. • Step 1- • Step 2– If yes, – If no, Griswold v. Connecticut (1965) • Griswold was charged with violating CT’s law against distributing contraceptives. • Her attorney made a substantive due process argument but also argued the right to privacy could be found in the 1st, 3rd, 4th, 9th, and 14th Amendments. Griswold v. Connecticut (1965) • Outcome: 7-2 decision striking down CT law. Griswold v. Connecticut (1965) • Reasoning Douglas• • • Griswold v. Connecticut (1965) • What Amendments have these emanations? • • • • • Griswold v. Connecticut (1965) • Marriage involves a right of privacy older than the Bill of Rights. • Connecticut laws infringes on this right of privacy. Griswold v. Connecticut (1965) • Goldberg’s concurrence- • Harlan’s concurrence Griswold v. Connecticut (1965) • Black’s dissent- • Griswold v. Connecticut (1965) • Stewart’s dissent-Law is silly but does not violate the Constitution. • There is no general right of privacy in the Constitution. After Griswold… • Supreme Court eventually embraces substantive due process to recognize right to privacy. • Court has limited how far it is willing to extend the right. Review • Substantive due process • Right to privacy – – – Next class… • Pay attention to discussions of S.D.P. in the reading. • Pay attention to who is writing about whether S.D.P exists.