Chapter 20 Section 1: Due Process of Law

  • The Constitution contains two due process clauses.

    • Fifth Amendment declares Federal Government can not deprive a person of “life, liberty, or property without due process of law”.

    • Fourteenth Amendment places the same restrictions on the State government.

  • Purposely refuses to give an exact definition in the Constitution.

  • Davidson Vs. New Orleans (1878)

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

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

  • Fair procedures with fair laws.

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

  • Court added the substantive due process to procedural due process in the 19th century.

  • In simpler terms:

    • Procedural due process – How

    • Substantive Due Process – What

The 14th Amendment

  • 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 power.

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

    • Power of state to safeguard of well being of its people.

  • State/Federal Powers have upheld the right to protect itself from drunk drivers.

  • Search Warrant: A court ordered authorizing a search.

Legislator and Judges Overriding Importance:

  1. To promote health, State limit alcoholic beverage and tobacco.

  2. To promote safety, regulating sales of weapons, requiring seat belts and punishing drunk drivers.

  3. Promote morals, regulate gambling, outlawing prostitution, and ban the sales of obscene material.

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

Right of Privacy

  • Constitutional guarantees of due process guarantees the right of privacy.

Chapter 20 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 in 1865 and ended slavery.

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

The 13th Amendment: Section 1

  • Slavery 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 the behavior of government.

The 13th Amendment: Section 2

  • Court held that racial discrimination against African 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 13th Amendment.

  • Runyon V. McCrary (1976): Two private schools had refused to admit two African Americans. Court found that the schools had violated the provisions of 1866 laws.

  • Court also ruled Civil Rights Act of 1866 protects all “identifiable groups who are subjected to intentional discrimination solely because of their ancestry or ethic characteristic”

  • Congress has held that the 13th Amendment gives Congress significant power to attack from whatever source they come.

Right to Keep and Bear Arms

  • The 2nd Amendments aim was to presence the concept of the citizen soldier.

  • Many insist the 2nd Amendment also sets out on individual right. Guarantees a right to keep and bear arms.

  • Supreme Court never accepted that interpretation of the 2nd amendment.

  • Untied States V. Miller, 1939: The court upheld a section of National Firearms Act of 1934. Section made it a crime to ship off shotguns, machine guns, or silence across State lines, unless shipper registers weapons with Treasury Department. Court saw no valid case.

  • 2nd Amendment is not covered in the 14th Amendment.

Security of Home and Person

  • 3rd/4th amendment says government can’t violate home or person with just cause.

3rd Amendment

  • Forbids the quartering of soldiers in private homes.

  • Never has gone to a Supreme Court.

4th Amendment

  • Prevent the use of writs of assistance – blanket search warrant.

  • State Constitution as well as the 14th Amendment have similar provisions.

  • 4th amendment is highly important.

Probable Cause

  • Police have no right to search for evidence or seize evidence without a proper warrant. Warrant must be obtained with probable cause (reasonable suspicion of crime).


  • An arrest is a seizure of a person.

  • A lawful arrest means that a police officer can search without a warrant.

  • Most arrests do not have a warrant.

  • Police can arrest people for probable cause.


  • Evidence gained as a result of an illegal act by police can not be used at the trial of person from when it was seized.

  • Bugged evidence can not be used.

Section 3: Rights of the Accused

  • It is better that ten guilty persons go free than that one innocent person be punished.

  • Law intends that a person who is suspected/accused of a crime must be presumed innocent until proven guilty by fair and lawful means.

Habeas Corpus

  • Writ of Habeas Corpus (Writ of Liberty) – Prevents unjust imprisonment or arrest.

Section 4: Punishment

  • Eighth Amendment: “Excess bail shall not be required, nor excessive fines imposed…”

– The United States Constitution

  • State constitution sets out similar reactions.

  • Bail: Sum of money that the accused may be required to post as a guarantee that he or she will appear in court at a proper time.

  • Justification of Bail:

  1. A person should not be jailed until he or her guilt is established.

  2. A defendant is better able to prepare for trial outside a jail.

  • Constitutions guarantees that if bail is set, it shall not be excessive.

  • Stack V. Boyle

    • Ruled that “bail set at figure larger than an amount reasonably calculated” is “excessive” under the eighth amendment.

  • Defendant can appeal on bail or amount for bail.

  • Bail is set according to the severity of the crime, reputation of accused and financial resource of the accused.

  • “Jumping Bail” – Failure to appear for trial is a punishable crime.

Preventive Detention

  • 1984, Congress provided for preventive detention of people accused of crime.

  • Federal Judge can order that the accused be held without bail in cases in which it can be feared that the accused will commit another serious crime before a trial.

  • Some claim that preventive detention is like being punished before a trial.

  • In 1987, Supreme Court continued to uphold the law in United States V. Salemo (1987). The decision was 6-3.

Cruel and Unusual Punishment

  • 8th Amendment forbids “cruel and unusual punishment”.

  • 14th Amendment extends the 8th Amendment to the States.

  • 1st cruel unusual case: Wilkerson V. Utah (1879)

    • Territorial court sentenced a convicted murderer to death through a firing squad.

    • Court held that this kind of punishment did not violate the Constitution.

    • Court took the same position on electrocution.

  • Court usually rejects the cruel and unusual punishment argument.

    • Lockyer V. Andrade (2003)

      • Man convicted of a crime a third time is to be sent to prison for 25 years.

Capital Punishment

  • Capital Punishment: Punishment by death.

  • Furman V. Georgia (1972)

    • Struck down all of the existing State laws allowing the death penalty. Court voided the laws because they gave too much discretion to judges/juries to decide whether to impose the death penalties.

  • Since 1972, Congress and 38 States have passed new capital punishment laws.

    • States made the death penalty mandatory for certain crimes (rape, killing of police, murder committed during kidnappings)

    • States provided for a two staged process in capital cases:

      1. Trial to settle issue of guilt or innocence.

      2. For the convicted, second heating to decide whether the circumstances justify a sentence of death.


  • Treason against US is the only crime defined in the Constitution.

  • Article III Seciton 3 says Treason is:

    1. Levying war against the Untied States.

    2. Adhering to their Enemies, giving them Aid and Comfort.

  • No person can be convicted of treason, “unless on the Testimony of two Witnesses to the sane over Act, or on Confession in Open Court”.

  • Congress set death as the maximum punishment.

  • Person can only commit treason during war times.

  • Congress made it a crime to commit espionage or sabotage in both wartimes and peace times.