Chapter 6 Due Process Flashcards
Due Process
Implicit in a concept of ordered liberty. Fifth Amendment applies to federal government. Fourteenth Amendment applies to state government.
Amendment V: No person shall be deprived of life, liberty, or property, without due process of law.
Amendment XIV: Nor shall any state deprive any person of life, liberty, or property, without due process of law.
Due Process Outline (3 Ways)
1) “State” Action. 2) Life, Liberty or Property. 3) Two Kinds of Due Process. A) Procedural B) Substantive
“State” Action
“State” means some governmental authority (Federal, state, or local). Liberty of Privacy vs. Right of privacy.
Liberty: Do not have the government protecting your liberty here (on the other side).
Right: Here you can call in the government to help you if a private person is infringing on you.
Life, Liberty, or Property
Liberty is more than just physical things, involves many of things we take for granted! Think of case Board of Regents vs. Roth (1972).
Board of Regents vs. Roth (1972)
Roth alleged a due process violation after not being hired after a one-year contract with UW without a hearing or opportunity to present his case. UW infringed on his liberty of a good reputation. The Court agreed with Roth, and the government should not infringe upon this. Court said no, that state violated due process because they didn’t send that he was not re-hired to external parties.
Two Kinds of “Due Process”
A) Procedural.
B)Substantive.
Procedural
1) Notice and opportunity to be heard.
Due process says you must be presented to a judge within 24 hours, to be told what you are charged with! Then you have an opportunity to prove the facts that you did not do the thing by use of evidence, testimony, etc. (Think of case CT vs. Doehr (1991)
Connecticut vs. Doehr (1991)
DiGiovanni went in to field a real estate attachment WITHOUT notice to Doehr (ex-parte). Doehr’s first notice of the attachment request was after the attachment had already been approved and placed on the town land records.It was granted and Doehr lost a real estate claim. Doehr then said he was being deprived of his property. Court said the Connecticut’s statute was unconstitutional. Now if you want a real estate attachment, you must notify the defendant!
Substantive
The substance of the law itself is unfair. (Violates or infringes on our basic rules of fundamental fairness)
1. Fair Warning. 2. Fundamental Liberties.
- Fair Warning
Criminalized conduct must be adequately defined and explained. Can’t be vague or ambiguous. (Think of Mr. Ed Case)
Mr. Ed Case (Pennsylvania)
They said drunk driving is not applicable; despite the man being drunk; the horse is not drunk so then there could be no harm and this is different than a regular drunk driving case! PA law said this language is too vague and ambiguous! Unconstitutionally vague and ambiguous because it doesn’t’t adequately say what is criminalized!
There was a dissenting opinion saying this was not ambiguous.
Minor’s Curfew, Vagrancy Laws, and ‘Hanging Out’
These laws were struck down for being vague and ambiguous!
- Fundamental Liberties
Think of Moore vs. City of E. Cleveland (1977).
Moore vs. City of E. Cleveland (1977)
Inez Moore was sentenced to 5 days in jail for violating the E. Cleveland single-family residence ordinance by allowing her grandson, John. Jr., to live with her. Where does the government get off to define family, when it comes to blood relatives? In respect to her living with her too!
The Court: The right to live as a non-traditional family is a right that we have! So yes it is a fundamental liberty to her to have her family live with her! (Protected under 14th Amendment) Court said the means were not rational and did not make sense, so law was unconstitutional.
Loving vs. Virginia (1967)
In Virginia, it was a crime for a white person to marry a non-white person. Loving married Jeter (black woman) in Washington D.C. and then had the choice of either leaving Virginia or getting put in jail!
The Court: Agreed with Loving and said that the Virginia Law was unconstitutional! Court said the freedom to marry is one of the vital personal rights protected by the Due Process clause of the Fourteenth Amendment and fundamental to our existence and survival.
