• The Constitution contains two due process clauses.

    • The 5th Amendment declares Federal government can not deprive a person of life, liberty, or property without due process of law.

    • The 14th Amendment places the same restriction to the states.

  • Purposely refuses to give exact definitions in the Constitution.

  • Davidson v. New Orleans (1878)

    • “Gradual process of inclusion and exclusion, as cases presented for decision required.

  • Fundamentally: Government must act fairly and in accord with established rules. It may not act unfairly, arbitrarily, capriciously, or unreasonably.

  • Fair procedures with fair laws.

  • Holds that due process requires that both ways in which government acts and the laws under which it acts must be fair.

  • Court added substantive due process added to procedural due process (19th century).

  • Procedural due process – How.

  • Substantive due process – What

14th Amendment and Bill of Rights

  • Bill of rights only apply to the National government. The 14th Amendment applies to the states.

The Police Power

  • Reserved power of the State include broad and important police..

  • Police power is the authority of each State to act to protect and promote public health, safety, morals, and general welfare.

  • Power of State is meant to be used as a safe guard “of well-being at is people”.

  • State/federal powers have upheld the right to protect itself from drunk drivers.

  • Search Warrant: A court order authorizing a search.

Legislator and Judges Overriding Importance:

  1. To promote health, States limit alcoholic beverages and tobacco.

  2. To promote safety, regulating states of weapons, requiring seat belts ad punishing drunk driving.

  3. Promote morals. Regulate gambling, outlaw prostitutes, ban sales of obscene materials.

  4. Promote general welfare, States can enact compulsory education law, provide help to medically needs and limit profits of public utilities.

Right of Privacy

  • Constitutional guarantees of due process guarantees right of privacy.

Section 2 Freedom and Security of the Person

  • Constitution guarantees the right of every American to live in freedom.

Slavery and Involuntary Servitude

  • 13th Amendment was passed 1865 and ended slavery.

  • Until 1865, States could decide whether or not to have slaves. 13Th Amendment denied the right.

The First Section of the 13th Amendment

  • Slaver disappeared 140 years ago.

  • Occasional cases, involving involuntary servitude, or forced labor.

  • 13th Amendment does not forbid all “involuntary servitude”.

  • In 1918, Court drew a distinction between “involuntary servitude” and “duty”.

  • Unlike other provisions in the constitution, the 13th Amendment covers the conductors of private individuals as well as behavior of government.

The Second Section of the 13th Amendment

  • Court held that radical discrimination against Africa Americans by private individuals did not place “badge of slavery” on them nor keep them in servitude.

  • Congress repealed most of the laws based off of the 13 Amendment.