The Constitution and the Court during Reconstruction

The Fourteenth Amendment

Due process clause.  This clause declares that no state shall deprive “any person of life, liberty, or property, without due process of law.”  By its terms, the clause applies to both criminal and civil proceedings.  The Fifth Amendment contains a parallel clause. Unlike the privileges or immunities clause, however, the due process protects “persons,” not just “citizens.”  

The concept of due process traces to the Magna Carta in 1215.  It relates to fairness and prohibiting government from wrongfully depriving persons of their interests.  Beyond that general definition, the concept is elusive and has led to extensive litigation, not always with clear or lasting answers.  

One issue has involved the definition of the terms used in the due process clause. For example, with respect to the reference to life, questions have arisen about when it begins and when it ends.   Is an unborn child a person?  Is a person dead and therefore no long entitled to the protections of due process when the heart stops beating or when certain brain functioning ceases?  Does liberty mean more than freedom from physical restraints?  Does liberty include the right to enter into contracts without the interference of governmental regulation?  Does the concept of liberty embody privacy?  Does property include both real and personal property?  Does it extend to intangibles such as reputation and ideas?  When does a governmental regulation of property cross the line and become a “taking” of property for which just compensation is due?  These and other questions continue to plague the due process analysis.    

Procedural due process.  One unquestioned dimension of due process focuses on the processes or procedures that state governments follow when they seek to deprive a person of life, liberty, or property.  Americans frequently disagree about the steps a state or local government must take to satisfy procedural due process. 

The Fourth through Eighth Amendments contain a basic outline of criminal procedural requirements.  As explained below, through a process called “selective incorporation,” the Supreme Court in the 20th Century began to require states as well as the national government to provide the procedural safeguards guaranteed by those amendments when it prosecutes and punishes criminal defendants.  In the civil context, the court has held that due process generally requires that a person receive notice, the opportunity for a fair hearing, the opportunity to present evidence, and the opportunity for at least one appeal of an initial decision before government can deprive them of protected rights.        

The steps that governments must take before depriving a person of property rights have been one fertile area of litigation.  One example is when states seek to terminate welfare assistance.  Such assistance has been deemed to be a property right of those who qualify for it.   In Goldberg v. Kelly (1969), the court held that state and local governments must provide recipients with a pre-termination evidentiary hearing before cutting off their benefits.

More recently, questions have arisen about the steps states must take before a patient can be removed from life support.   In Cruzan v. Missouri Department of Health (1990), for example, the court reaffirmed the right of mentally competent patients to refuse medical treatment.  But it held that the parents of an adult child who was in a persistent vegetative state could not order that life support measures for their daughter be discontinued without approval by a court.  The purpose of the judicial hearing was to seek to determine what the patient would have wanted had the patient been competent to make the decision about life support.   

Substantive due process.  Even before the Civil War, the Supreme Court had held that due process prohibits an American government from enacting some laws altogether, no matter how popular those laws might be.  Dred Scott v. Sandford was an example.  In that case, the Supreme Court held the Missouri Compromise violated the due process clause of the Fifth Amendment because it took away the property rights of slave owners. In the later 19th century, the court held that the due process clauses of the Fifth and Fourteenth Amendments protect liberty of contract, leading it to declare unconstitutional both federal and state legislation aimed at regulating the relationship between employers and employees.  Lochner v. New York (1905) was a leading example, in which the court struck down a state statute that limited the number of hours a laborer could work each day.  The court held that the limitation imposed on the number of hours a person could agree to work each day violated the freedom of contract implicit in the Fourteenth Amendment. The court abandoned its commitment to freedom of contract as a substantive prohibition against enactment of economic regulatory legislation in 1937 in West Coast Hotel v. Parrish.  

In the 20th century, the court identified other “fundamental” rights that are not mentioned in the Constitution but that due process generally shields from legislation.  Sometimes the court has characterized the rights as privacy rights; other times, as liberty rights.  These rights cannot be infringed upon by legislation unless Congress or a state legislature can demonstrate a “compelling” public interest for doing so.   The list of fundamental rights includes:

  • A parent’s right to teach one’s children a foreign language (Meyer v. Nebraska, 1923) or send the child to a private school (Pierce v. Society of Sisters, 1925)
  • The right to associate with others to pursue lawful interests (NAACP v. Alabama, 1958)
  • The right to travel abroad (Aptheker v. Secretary of State, 1964) and interstate (Shapiro v. Thompson, 1969) 
  • The right of marital privacy and use of contraceptives (Griswold v. Connecticut, (1965)
  • A woman’s decision to terminate a pregnancy in the first trimester (Roe v. Wade 1973)
  • A mentally competent adult’s decision to refuse medical treatment (Cruzan v. Missouri Department of Mental Health, 1990)
  • The right to engage in intimate homosexual conduct without criminal penalty (Lawrence v. Texas, 2003)

The Supreme Court’s rulings involving procedural and substantive due process have generated considerable political controversy while at the same time contributing to the institutional power of the federal courts: Americans increasingly have turned to the courts for legal answers to questions about individual rights. Judicial rulings under the due process clause have had far-reaching implications for American federalism and the rights of states to control their internal governance.  

Selective incorporation of the Bill of Rights.  The Supreme Court’s decision in the Slaughterhouse Cases in 1873 interpreted the privileges or immunities clause in a manner that eliminated that clause as a source of support for the theory that all of the rights in the Bill of Rights are among the privileges or immunities of citizenship.  Years later, the Court began to hold that the due process clause of the Fourteenth Amendment requires states to respect most, but not all, of the rights in the Bill of Rights.  The rights that states must respect have been held to be “implicit in the concept of ordered liberty” (Palko v. Connecticut, 1937) or “fundamental to the American scheme of justice.” (Duncan v. Louisiana, 1967).  On a case-by-case basis (often called “selective incorporation”), the Court has held that the Fourteenth Amendment requires states as well as the national government to comply with the following limitations on government power contained in the Bill of Rights:

  • Just compensation for taking of private property for public use (Quincy Railways v. Chicago, 1897)
  • Free speech, (Gitlow v. New York, 1925)
  • Free press  (Near v. Minnesota, 1931)
  • Right to counsel in capital cases  (Powell v. Alabama, 1932) 
  • Free assembly (DeJonge v. Oregon, 1937)
  • Free exercise of religion (Cantwell v. Connecticut, 1940)
  • No establishment of religion (Everson v. Board of Education, 1947) 
  • Right to public trial (In re: Oliver, 1948) 
  • Prohibition against unreasonable search and seizure (Wolf v. Colorado, 1949) 
  • No use at trial of evidence from illegal searches (Mapp v. Ohio,  1961)
  • No cruel and unusual punishment (Robinson v. California, 1962)
  • Right to counsel in all felony cases (Gideon v. Wainwright, 1963) 
  • Protection against self-incrimination (Malloy v. Hogan, 1964) 
  • Right to confront adverse witnesses (Pointer v. Texas, 1965)
  • Right to impartial jury (Parker v. Gladden, 1966) 
  • Right to obtain defense witnesses in criminal trials (Washington v. Texas, 1967)
  • Right to speedy trial (Klopfer v. North Carolina, 1967)
  • No double jeopardy (Benton v. Maryland, 1968)
  • Right to jury trial in non-petty cases (Duncan v. Louisiana, 1968)
  • Right to counsel for misdemeanors permitting imprisonment (Argersinger v. Hamlin, 1972) 
  • Right to notice of criminal accusation (Rabe v. Washington,1972)
  • Right to keep and bear arms (McDonald v. Chicago, 2009)