Description
Compose a written response to the given prompt containing a minimum of 150 words. After you have posted your discussion, respond thoughtfully to the Discussion Topic posts of at least two other classmates. Be sure to follow the Rubric attached at the bottom.
Politics plays an immense role in the nomination process. Consider the nomination of Merrick Garland by Barack Obama in 2016 to fill the vacancy on the Supreme Court created by the death of Justice Antonin Scalia (an icon of conservative ideology). However, at that time Senate Majority Leader, Mitch McConnell, declared any appointment by the sitting president to be null and void. He said that the next Supreme Court justice should be chosen by the next president — to be elected later that year.
Based on this information, analyze the process by which U.S. judges are nominated and confirmed. Does this seem like a fair process? What extent does it have on the political lean of the Court, and therefore, on United States law (specifically civil rights and civil liberties)?
please make sure to include some sort of information to back up your point from the lesson attached.
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11
Civil Liberties and Civil
Rights
K. Michael Reese and Brian Murphy
Learning Objectives
After covering the topic of civil liberties and civil rights, students should
understand:
1. The defining characteristics of civil liberties and civil rights.
2. The sources of civil liberties and civil rights.
3. The importance of civil liberties and civil rights in a functioning
democracy.
4. The roles of the U.S. Supreme Court and the Congress in expanding and
limiting, the scope of civil liberties and civil rights.
5. The process by which most provisions of the Bill of Rights were applied
to the states.
Abstract
A representative democracy is more than governmental processes. It exists to
protect certain fundamental freedoms known as “civil liberties” and “civil rights”
because these freedoms are what make democracy possible. This chapter examines the
sources, scope, and nature of American civil liberties and civil rights. Specific federal
statutes and U.S. Supreme Court cases are cited to enrich the discussion.
The Basics of American Government
Introduction
Civil Liberties and Civil Rights: Definitions and Distinctions
There is no accepted definition of what constitutes the civil liberties of
American citizens. Some scholars limit these freedoms to the rights listed in the
First Amendment, such as freedom of speech, freedom of the press, and free
exercise of religion (Wasserman, 2004, p. 152), while others include the first ten
amendments to the Constitution, called the Bill of Rights (Rush, 2003, p. 59). In
this chapter, the term civil liberties will refer to all freedoms and protections
provided anywhere in the Constitution. The term civil rights is narrower and
applies to the rights of individuals to be free from discriminatory treatment,
both public and private, based on such characteristics as race, national origin,
or gender. Where civil liberties act as a shield to protect specific freedoms, civil
rights are more like a sword that promote fair treatment and equality (Stephens
and Scheb, 2008, p. 3). This chapter will survey the civil liberties and civil rights
of American citizens.
Civil Liberties: Original Constitution
The original Constitution included a number of references to civil liberties.
Article I, Sections 9 and 10 prohibit federal and state governments from passing
bills of attainder and ex post facto laws. A bill of attainder is a law that declares
an individual or a group guilty of a crime and imposes punishment without a
trial in court. For example, the Supreme Court struck down a law that made it a
crime for members of the Communist Party to serve as officers or employees of
a labor union because such individuals constituted a threat to national security
(United States v. Brown, 1965). The law was a bill of attainder since members of the
Communist Party were assumed criminals prior to committing any illegal act. An
ex post facto law is “passed after the occurrence of a fact or commission of an act,
which retrospectively changes the legal consequences or relations of such fact or
deed” (Black, 1968, p. 662). Laws of this kind can occur in several ways. It typically
occurs when an action is made a crime that was previously legal and people who
committed the act could now be prosecuted. Along the same line, ex post facto laws
also include increasing the seriousness or punishment of a crime and altering the
rules of evidence to the detriment of a criminal defendant. The right of habeas
corpus is another civil liberty found in Article I, Section 9, and, as explained in the
previous chapter, it allows an incarcerated person to challenge in court the legality
of that incarceration. A final civil liberty in Article VI of the original Constitution
prohibits the federal government from requiring religious tests for public office.
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Civil Liberties and Civil Rights
The Bill of Rights and Civil Liberties
The Original Formulation
The Founders debated whether to list, one-by-one, the rights citizens of the
new national government should possess. After the experience under British
rule, many at the Constitutional Convention were fearful that a strong national
government would be in position to trample personal liberties (Kommers, Finn &
Jacobsohn, 2010, p.111). James Madison, however, persuaded the Convention not
to attempt to do so because there is no way to identify every right a citizen could
potentially need. If a right was omitted, Madison argued, the government would
be justified in believing that citizens were not entitled to it. So why was the Bill of
Rights added almost immediately after the Constitution was adopted? The reason
is that several states refused to ratify the document until it was clear what basic
rights could not be violated by the new government. A compromise was reached
in which the First Congress would propose amendments addressing specific
fundamental rights upon ratification of the Constitution (Epstein & Walker,
2010, p.67). The task of drafting possible amendments fell to Madison. Congress
eventually submitted twelve amendments to the states and ten of them—the Bill
of Rights—were adopted in 1791. Madison sought to address his concern that
certain important rights would be omitted through the Ninth Amendment. It
reads: “The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.” This means, in
simple terms, that American citizens have more rights than those mentioned in
the Constitution. It would not be until 1965 that the Supreme Court would use
the Ninth Amendment to find a right not contained in the Bill of Rights. But
another battle had to be fought prior to this controversial step.
One question left unanswered after the adoption of the Bill of Rights was
whether its protections applied to both national and state governments. The
Supreme Court initially ruled that only the national government was forbidden
from violating the rights listed in these amendments (Barron v. Baltimore, 1833).
The Court reasoned that the language of the First Amendment, which begins with
“Congress shall make no law…,” clearly indicates the Founders did not intend for
the Bill of Rights to apply to state governments. As such, there was no constitutional
ban against states violating any of the protections in the Bill of Rights, such as free
speech or the exercise of religion. States could, of course, provide similar freedoms
through their own constitutions and laws, but they were not required to do so by
the Bill of Rights. It was not until the twentieth century that the Supreme Court’s
position began to change, but the process occurred slowly.
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The Basics of American Government
Selective Incorporation: Application of the Bill of Rights to
the States
In 1868, the Fourteenth Amendment was added to the Constitution. One
section, called the due process clause, stated the following: “No state … shall
deprive any person of life, liberty, or property, without due process of the law.”
Since the clause declares that states cannot deny a person liberty, did it mean
they could no longer violate the Bill of Rights? The Supreme Court, at first, ruled
against this interpretation by holding that the due process clause of the Fourteenth
Amendment did not apply the Bill of Rights to the states (Hurtado v. California,
1884). In 1925, the Court partially reversed direction by acknowledging that
freedom of speech and press constituted “fundamental personal rights and
‘liberties’ protected by the due process clause of the Fourteenth Amendment from
impairment by the States (Gitlow v. New York, 1925).” It is important to note that
the Supreme Court refused to apply all provisions of the Bill of Rights to the states.
This hesitation caused confusion since it was no longer certain whether states had
to obey any other of these rights. It became cloudier when several more rights were
quickly imposed against the states again through the due process clause: freedom
of press (1931), right to counsel in capital crimes (1932), free exercise of religion
(1934), and right to assembly (1937). It soon became necessary to provide greater
clarity about what provisions of the Bill of Rights states are required to protect.
The process by which the Supreme Court applied provisions of the Bill of
Rights one-by-one to the states became known as selective incorporation.
Although certain justices, like Hugo Black and William Douglas (Epstein and
Walker, 2010, p.81), supported “total incorporation” in which all provisions of the
Bill of Rights should be included in due process, a majority of the Court rejected
this approach in favor of a case-by-case analysis. In determining which rights
should be incorporated, the Court came to assess whether a particular provision
was essential to “ordered liberty and justice” (Palko v. Connecticut, 1937; Duncan
v. Louisiana, 1968). Even today, however, not every protection in the Bill of Rights
has been incorporated. Those that remain unenforced against the states are the
following: the Third Amendment prohibition against nonconsensual quartering
of soldiers in peace time, the Fifth Amendment right to a grand jury hearing, the
Fifth Amendment right to due process of law (because the due process clause
of the Fourteenth Amendment makes this unnecessary), the Sixth Amendment
right to a jury selected from residents of the state and district where the crime
occurred, and the Seventh Amendment right to a jury trial in civil cases. Selective
incorporation continues to this day, with the Eighth Amendment’s protection
against excessive fines incorporated as recently as 2019.
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Civil Liberties and Civil Rights
The incorporation doctrine has been used solely with respect to the rights
and liberties contained in the first eight amendments rather than to the entire
Bill of Rights because: (1) the Ninth Amendment, as discussed earlier, makes no
reference to any specific rights and (2) the Tenth Amendment is equally vague
by awarding the states all powers not explicitly given to the federal government
by the Constitution. Once a provision has been incorporated, however, states
must enforce it in every case that occurs afterwards. They have no choice because
Supreme Court interpretations of the Constitution are the supreme law of the
land under Article VI, trumping state laws to the contrary. Nonetheless, states
may provide greater freedoms and protections to their citizens if based on their
own laws and constitutions, but never less than the Supreme Court’s minimum.
Let’s take a look at the key incorporated rights. Keep in mind that no civil
liberty is unconditional. At some point, the government can constitutionally
deprive citizens of any liberty in the Bill of Rights. For example, there are times
when a person can be forced against religious convictions to submit to a blood
transfusion even when against a person’s religious beliefs. Supreme Court
decisions, therefore, are about defining the point at which an individual’s freedom
can be restricted.
Survey of Incorporated Civil Liberties
First Amendment
The First Amendment protects freedom of speech, freedom of press, the
right to peaceably assemble, and the right to petition the government for redress
of grievances. Collectively, these freedoms and rights can be described as the
freedom of expression. The Supreme Court has given a great deal of protection
to freedom of expression, and that protection has on occasion been extended
to symbolic speech and symbolic actions, often called speech plus. Examples
include burning a flag (Texas v. Johnson, 1989), wearing a black armband to
school (Tinker v. Des Moines Independent Community School District, 1969), and
adorning one’s clothing with offensive sentiments (Cohen v. California, 1971).
While fiercely protected, the Court has sometimes allowed freedom of expression
to yield in the public interest. As Justice Oliver Wendell Holmes famously put
it, “The most stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic (Schenck v. U.S., 1919).” The
Supreme Court has employed various tests in determining when speech could
constitutionally be curtailed. Holmes got the ball rolling in Schenck with the clear
and present danger test. That is, words can be punished if they are likely (clear
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The Basics of American Government
and present) to produce harm (danger) in light of the circumstances. Thus, there
is nothing dangerous in uttering the word “fire” unless said in a context—like a
crowded theater—where it could lead to injury. This test has been revised over
time, but its basic framework remains largely the same.
The Supreme Court has identified three kinds of expression—obscenity
(lewd, filthy, or disgusting words or pictures), defamation (a false statement
that harms reputation), and fighting words (words likely to incite immediate
violence)—as having no protection of any kind under the First Amendment. Yet
even here, judges have found it difficult to decide whether expression is obscene
or merely offensive, whether it is defamatory or just unflattering, and whether it
amounts to fighting words or simply unpopular opinions. Quite clearly, the scope
of free expression is wide for American citizens across-the-board.
Freedom of press, including the broadcast medium, is somewhat different
than oral speech due to the possibility of censorship. Censorship can occur when
governmental approval is needed prior to publication. Oral speech, in contrast,
is punishable only after communication has taken place. Censorship of the press
is rarely upheld by the courts. When the New York Times began publishing topsecret documents on the Vietnam War, the Justice Department sought to censor
release of further files. Even though the material was classified, the Supreme
Court supported continued publication (New York Times Co. v. United States, 403
U.S. 713, 1971). Censorship is most likely to be tolerated, if it is tolerated at all, in
a public-school environment.
The First Amendment also contains two clauses on religion, the free exercise
clause and the establishment clause. The free exercise clause protects the freedom
to worship as one sees fit, or not to worship at all. While people have the right to
hold any religious belief no matter how offensive or harmful, the government
may prevent the practice of the belief if a “compelling” need to do so can be
demonstrated. For example, the Supreme Court allowed the government to ban
the practice polygamy for religious reasons (Reynolds v. United States, 1878) as
well as requiring Amish employers to pay into the social security system despite
religious objections (United States v. Lee, 1982). The establishment clause
prohibits governments from supporting a particular religion. Examples include
faculty-orchestrated prayer in public schools or a government grant to a private
organization to purchase bibles. On the other hand, reasonable government
accommodation of religion is constitutional (Schultz, Vile, and Deardorff, 2011,
p.78). In order to withstand an establishment clause challenge, the government’s
policy must have a secular (non-religious) purpose, must have a primary effect
that neither advances nor inhibits religion, and must avoid excessive entanglement
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Civil Liberties and Civil Rights
between the state and religion (Lemon v. Kurtzman, 1971). The Lemon tests were
satisfied in a case where a city’s Christmas display in a public park included a
nativity scene (Lynch v. Donnelly, 1984). Courts have experienced difficulty in
applying the vague language of Lemon in concrete cases, with decisions even of
the Supreme Court being criticized for inconsistency.
Second Amendment
The Second Amendment gives people the right to bear arms, and for a long
time this right only limited the federal government. States and local governments
frequently imposed restrictions on the possession and sale of guns. The
Supreme Court reversed direction by ruling that the right to defend oneself was
fundamental, making the Second Amendment applicable to state governments as
well (McDonald v. City of Chicago, 2010).
Fourth Amendment
The Fourth Amendment protects individuals from unreasonable searches
and seizures by governments. A search is unreasonable when a person’s reasonable
expectation of privacy is violated (Katz v. United States, 1967). For example, the
Supreme Court has ruled on multiple occasions that no such expectation arises
in connection with aerial surveillance (California v. Ciraolo; Dow Chemical Co.
v. United States, 1986) but not when government agents conduct searches using
thermal-imaging technology (Kyllo v. United States, 2001), attach a GPS tracking
device to track a vehicle (United States v. Jones, 2012), or bring drug-sniffing dogs
onto a suspect’s front porch (Florida v. Jardines, 2013). A seizure involves the
government taking control over a person or thing. Both searches and seizures
require governmental involvement. There is no Fourth Amendment protection
against private searches and seizures.
A valid warrant generally makes a search or seizure acceptable under the
Fourth Amendment. Nonetheless, most searches and seizures are conducted
without warrants, such as when a person gives consent or after a lawful arrest.
A valid search warrant is issued by a judicial officer and must be supported by
probable cause, describe the place to be searched and the persons or things to be
seized with particularity, and include the oath or affirmation by the government
agent. Let’s unpack these terms. Probable cause means sufficient information
exists to lead a reasonable police officer to conclude that evidence of a crime can
be found at a location. Particularity means enough detail is provided about what
to search for and where to search for it. The oath or affirmation is the officer’s
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The Basics of American Government
sworn statement that the information is, to the best of the officer’s knowledge
and understanding, truthful and correct. A judicial officer, such as a magistrate,
will determine if these requirements are met and either issue or refuse to issue
the warrant. Unless these standards are fulfilled, evidence seized in violation of
the Fourth Amendment—pursuant to the exclusionary rule—is inadmissible
to prove the guilt of the individual whose rights were violated (Weeks v. United
States, 1914; Mapp v. Ohio, 1961). There are exceptions to this rule. Under the
good faith exception, evidence is admissible even if a warrant is later determined
to be deficient so long as the officer acted upon the warrant with reasonable belief
it was valid, (U.S. v. Leon, 1984). Georgia, it should be noted, gives its citizens
greater protection by not recognizing the good faith exception to the exclusionary
rule (Gary v. State, 1992).
Fifth Amendment
The Fifth Amendment contains several important rights. The privilege
against self-incrimination prevents an individual from being forced to testify
if any statements could lead to his or her criminal prosecution. For example, a
person could “plead the fifth” when called as a witness in a trial or a hearing, or
when questioned by government agents while restrained from leaving (custodial
interrogation). Indeed, the famous Miranda warnings are based primarily on
the privilege against self-incrimination (Miranda v. Arizona, 1966). These four
warnings (You have the right to remain silent. Anything you say can and will be
used against you in a court of law. You have the right to an attorney. If you cannot
afford an attorney, one will be provided for you) are required if, and only if, a
suspect is interrogated while in custody. The warnings are not required if there is
custody without interrogation or interrogation without custody. If the warnings
are not delivered when required, any incriminating statements made by a suspect
will be inadmissible at a subsequent trial. Under the public safety exception,
however, these warnings do not have to be read when a threat exists to the public
well-being (New York v. Quarles, 1984).
The double jeopardy clause prohibits multiple prosecutions for the same
offense. Otherwise, a state could prosecute a criminal defendant over and over for
the same crime in hopes of finally getting a conviction or of obtaining a harsher
punishment than what was previously imposed. In most cases, the government
has one opportunity to obtain a conviction. There are some exceptions to double
jeopardy. For example, the government may retry a case when the first trial ended
in a mistrial, such as a “hung jury” where the jury could not agree on a verdict.
The state may also retry a case if a defendant is initially found guilty but the
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Civil Liberties and Civil Rights
conviction is reversed on appeal since a reversal on appeal voids the first trial
due to a legal error. The same act, however, can violate the laws of two states
and lead to two prosecutions and punishments without violating double jeopardy
(Heath v. Alabama, 1985). This could happen if a person stole a car in Alabama
and drove it to Georgia. Alabama could prosecute for stealing the vehicle while
Georgia could prosecute for possession of a stolen vehicle. There was one theft
but two prosecutions. Each state and the federal government are considered
“sovereigns” with the authority to enforce their laws under a concept known as
dual sovereignty.
The Fifth Amendment additionally contains what is known as the takings
clause. States, under the power of eminent domain, are allowed to confiscate
private property from unwilling sellers. To be permissible, the takings clause
requires that the property must be used for a public purpose and just compensation
must be paid to the owner. The right to a grand jury is the final Fifth Amendment
protection to be discussed. A grand jury is a group of people summoned by a
government (state or federal) to consider evidence against a person charged with
a crime. These juries do not convict individuals but determine whether enough
evidence exists to conduct a trial. A government prosecutor presents its evidence
to the grand jury in a private hearing. If the grand jury agrees that the accused
likely committed the crime in question, an indictment (sometimes called a true
bill) is issued against the accused. As previously noted, the requirement for a
grand jury has not been incorporated. Thus, the Supreme Court has required use
of grand juries only in federal felony crimes. States are under no constitutional
obligation to provide grand juries in criminal prosecutions, although many have
chosen to include such a requirement in their own constitutions.
Sixth Amendment
Most of the rights associated with the trial of a criminal defendant can be
found in the Sixth Amendment. These include the right to counsel, the right
to a speedy trial, the right to a public trial, the right to a jury trial, the right to
confront the accuser, and the right to compulsory process. Concerning the right
to counsel, there is usually no issue when the defendant is financially able to
pay for a private attorney. The problem arises when an indigent defendant—one
unable to pay for a lawyer—is accused of a crime. In this latter case, the rules vary
depending on whether the crime is a felony or a misdemeanor. A felony is a crime
punishable by a fine and/or a year or more in prison, while a misdemeanor is a
crime punishable by a fine and/or up to twelve months in jail. The Supreme Court
ruled that states must appoint counsel for indigent defendants in all felony cases
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The Basics of American Government
(Gideon v. Wainwright, 1963), but only in misdemeanor cases when incarceration
occurs (Argersinger v. Hamlin, 1972; Scott v. Illinois, 1979; Alabama v. Shelton,
2002). It is important to note that the right to counsel will sometimes apply in
various pre-trial and post-trial procedures.
The Sixth Amendment provides no explanation about how quickly the right
to a speedy trial must be scheduled. Delays are quite common between an arrest
and a trial due to factors such as a psychiatric evaluation or scheduling conflict.
There is no bright-line rule when a delay violates the Sixth Amendment. Rather,
the Supreme Court considers four factors in making a determination: the length
of the delay, the reason for the delay, the defendant’s assertion of the right, and
any negative impact to the accused because of the delay (Barker v. Wingo, 1972).
Perhaps for greater clarity, the federal government and most states have enacted
laws that define how quickly a trail should be scheduled. The Federal Speedy
Trial Act of 1974, for example, requires that a trial for a federal crime should
commence within 100 days of an arrest or receipt of a summons.
The right to a public trial was a response to the old practice of conducting
trials behind closed doors in which a defendant could be tried, convicted, and
sentenced without anyone knowing what happened. The goal of this provision is
to ensure a fair trial by allowing spectators to observe that the process operates
according to the law.
The right to a jury trial is one of America’s treasured legal traditions. It
is based on the belief that ordinary citizens are better at judging innocence or
guilt than those with a stake in the outcome. Although the Sixth Amendment
provides for this right in “all criminal prosecutions,” the Supreme Court has ruled
that the right attaches only when a defendant is charged with a “serious offense”
in which a potential punishment of more than six months imprisonment
is possible (Baldwin v. New York, 1970). The size of a jury in criminal cases
varies depending on where the trial occurs. At the time of the Constitutional
Convention, a jury customarily consisted of twelve people and criminal trials at
the federal level continued the practice. It was not until 1968 that the right to a
jury trial was incorporated against the states (Duncan v. Louisiana, 1968). Two
years later, however, the Supreme Court ruled that criminal cases in state courts
could contain as few as six jurors (Williams v. Florida, 1970). In order to convict,
federal juries must be unanimous, but it was not until 2020 that the Supreme
Court required unanimous verdicts in state criminal trials at least for “serious
offenses” (Ramos v. Louisiana, 2020).
Defendants have the right to confront their accusers through the
confrontation clause of the Sixth Amendment. This right is afforded so that cross– 258 –
Civil Liberties and Civil Rights
examination can occur allowing jurors to evaluate the reliability of witnesses.
While a face-to-face confrontation is typical, the Supreme Court has relaxed the
requirement in certain circumstances when in the best interest of a party, such as
using a one-way closed-circuit television in a molestation case where the child is
in one room while the defendant, judge, and jury observe from the courtroom
(Maryland v. Craig, 1990).
The final aspect of the Sixth Amendment worth noting is the right to
compulsory process. This gives a defendant the power to subpoena witnesses
to testify. A subpoena is a summons by a court to appear and testify so that
defendants have an opportunity to present their side of a case. The prosecution
has a similar power of subpoena in order for its case to be fully heard as well.
Eighth Amendment
The Eighth Amendment is a single sentence, but it includes multiple
provisions in protecting against excessive bail, excessive fines, and cruel and
unusual punishment. Just recently (Timbs v. Indiana, 2019), all provisions have
been incorporated against the states. Nonetheless, there is still no constitutional
right to bail. The purpose of bail, if it is allowed, is to insure the appearance of
a defendant at the trial. In determining whether bail is excessive, the courts
consider such things as the seriousness of the crime, the risk of flight, and the
community ties of the defendant.
The protection against cruel and unusual punishment has generated
substantial case law. Punishments can be cruel and unusual in two different
ways. One possibility would be a punishment that is barbaric or inhumane.
Examples would be cutting the hand off of a convicted thief or poking the
eyes out of a convicted “peeping Tom.” Punishments can also be cruel and
unusual, even if they are not barbaric, if they are excessive or too severe for
the crime. In many situations, the death penalty falls into this category. The
Supreme Court has never ruled that the death penalty is cruel and unusual, but
this punishment has been considered excessive for most crimes. For example,
the Court has held that the imposition of the death penalty for the crime of
rape would violate the Eighth Amendment (Coker v. Georgia, 1977; Kennedy
v. Louisiana, 2008). Clearly, it would be unconstitutional to impose the death
penalty for less serious crimes, such as theft or forgery. Today, there seems to be
a narrow range of crimes for which the death penalty could be imposed. These
include certain criminal homicides, treason, and air piracy. The debate over the
appropriateness of imposing the death penalty has been longstanding and will
no doubt continue into the foreseeable future.
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The Basics of American Government
Civil Liberties: Beyond the Bill of Rights
Fourteenth Amendment
After the Civil War, the Fourteenth Amendment was added to the
Constitution in an effort to protect the rights of former slaves. It not only grants
national and state citizenship to all persons born or naturalized in the United
States, but it also contains three clauses intended to provide additional layers of
protection: the privileges and immunities clause, the due process clause, and the
equal protection clause. The privileges and immunities clause prohibits states
from infringing upon the rights of U.S. citizens. The exact meaning of the words
is unclear, but many hoped they would apply the provisions of the Bill of Rights
to the states. The Supreme Court rejected this interpretation by distinguishing
between national citizenship and state citizenship and holding that the privileges
and immunities clause only protected rights of U.S. citizenship already listed in
the Constitution, such as travel between the states (Slaughterhouse Cases, 1873).
In other words, the clause in no way imposed new limitations on state authority.
The due process clause has, over time, proven to be a powerful tool in the
hands of courts. The clause forbids states from depriving any person of life, liberty,
or property without due process of law. It has been used in two different ways.
Under procedural due process, courts examine whether the steps required by
law and the Constitution have been followed when denying a person life, liberty,
or property, such as the right to cross-examine witnesses or the opportunity to be
represented by counsel. The greater the potential deprivation, the more elaborate
the protective procedures must be. Under substantive due process, governments
are prevented from interfering with fundamental rights even if proper legal
procedures are followed. It is a highly controversial concept because judges have
been accused of imposing their own values in determining what constitutes a
fundamental right.
A well-known example of substantive due process involves abortion. In 1965,
the Supreme Court reasoned a constitutional right to privacy exists through
the Ninth Amendment that allows individuals access to contraceptives (Griswold
v. Connecticut, 1965). More recently, the Supreme Court expanded the right
of privacy by focusing on the word “liberty” in the due process clause of the
Fourteenth Amendment. In Roe v. Wade (1973), a majority concluded: “This right
of privacy … is broad enough to encompass a woman’s decision whether or not to
terminate her pregnancy.” Once the door on privacy was opened through the due
process clause, it has been applied to other areas of intimate familial matters, such
as marriage, rearing children, and sexual orientation.
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Civil Liberties and Civil Rights
To sum up, substantive due process focuses on what the state intends to do to
a person, while procedural due process focuses on how the state intends to do it.
Both, nonetheless, share a concern about ensuring fundamental fairness.
The final protection in the Fourteenth Amendment prohibits states from
denying any person equal protection of the laws. In particular, the equal protection
clause examines whether state governments have acted in a discriminatory
fashion by treating similarly situated groups differently. Initially applied against
allegations of racial discrimination, such as terminating segregation in public
school systems (Brown v. Bo
