Constitutional-Literacy-15

=**Section 15: Procedural Due Process**=

Part of the 14th amendment reads "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." This part is known as the Due Process Clause. The 5th amendment uses similar language. The Due Process Clause guarantees that you get a fair hearing before being deprived of your life, liberty, or property.


 * Comprehension Question: What is the basic purpose of the Due Process Clause?**

In Cleveland Board of Education v. Loudermill 1985 the court issued a very important statement. An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for a hearing appropriate to the nature of the case. The rules of due process are only invoked when the government is going to deprive you of your life, your liberty, or your property.


 * Comprehension Question: What is the most important rule of due process?**

Focusing on deprivation of liberty or property (deprivation of life deals with a capital offense), the case Board of Regents v. Roth 1972 ruled that a government employee could not be fired before a hearing (this does not apply in the private sector). In Morrissey v. Brewer 1972 a person on welfare had the right to due process before being terminated from the benefits. In Tinker v. Des Moines 1969 students in public schools cannot be expelled without a due process hearing (some students were wearing black armbands in protest of Vietnam). These rules seem to be common sense rules, but they are rules that are being made up by the Supreme Court. The Tinker ruling is good, it's common sense, but it's made up by the Supreme Court. Should they be the ones making up the rules out of thin air? Congress is the institution that is to make laws/write legislation.


 * Discussion Question: Though the Tinker ruling was good it was something that the Supreme Court made up rather than Congress. What are your thoughts about this?**

Government jobs, welfare, and public school attendance are classified as property rights, although different than the Founding Fathers intended. The states must create a fair process before any of these things (like actual property) can be taken away.

What is a process that is due? In the Loudermill case, any deprivation must be preceded by notice and opportunity for a hearing appropriate to the case. All that was needed to fire the government employee was a written or oral notice, the charges written down, and the chance for the employee to defend himself/herself.

Criminal defendants also have rights. Rights have to be read to a person arrested (Miranda Rights) in the ruling from Miranda v. Arizona 1966. For hundreds of years, the standard of American (and English) law was that confessions were lawful unless they were the result of coercion. Now, police have to read the Miranda rights to a person when arrested. This brings up the issue of original intent versus due process. Congressional law again didn't change anything, but rather the Supreme Court did. Anything the suspect says without the Miranda Rights read can't be used (although this doesn't necessarily mean the suspect completely gets off the hook, but only that your words can't be used against you in court if police fail to read the Miranda warnings). This is an example, though, of judicial legislation. The courts do have the ability from common law from England to change the rules for evidence. Rights being read to a person is good policy, but it's suppose to be Congress doing the legislating, not the Supreme Court. The substance of the Miranda Rule is good and Congress certainly would have passed that rule, but it's imposed by the Supreme Court without original intent of the Constitution to back them up. It's an example of the Supreme Court making policy decisions. However, most Americans don't see or realize that.


 * Comprehension Question: What does the Miranda rule require?**


 * Comprehension Question: What happens if police question a suspect without reading the Miranda warning first?**


 * Discussion Question: The Supreme Court has held that government employees should be given hearings (which can be very informal) before being fired. Should this rule apply to private employers? Why or why not? (Note: The Constitution cannot be the source for requiring such a rule since the Constitution binds the government only. Such a rule would have to come from a statute passed by Congress).**

**Overall: Summarize the main idea of this section and why it's important.**

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