Chapter 9

DUE PROCESS OF LAW

This Chapter examines principally the Due Process Clause of the Fourteenth Amendment, which imposes the obligation of due process on the states. As you read, keep in mind that there is also a Fifth Amendment Due Process Clause, which applies only to the federal government; in general, anything that the Fourteenth Amendment Due Process Clause would require the states to do, the Fifth Amendment Due Process Clause requires the federal government to do. Here are the key concepts in this Chapter:

•     Due Process Clause generally: The Fourteenth Amendment provides (in part) that “no state shall make or enforce any law which shall … deprive any person of life, liberty, or property, without due process of law. … ” This is the Fourteenth Amendment’s Due Process Clause.
•     The Bill of Rights and the states: One of the major functions of the Fourteenth Amendment’s Due Process Clause is to make the Bill of Rights — that is, the first ten amendments — applicable to the states.
  •     Not directly applicable to states: The Bill of Rights is not directly applicable to the states — the Bill of Rights as originally drafted limited only the federal government, not state or municipal governments.
  •     Application of Bill of Rights to states: But the Fourteenth Amendment, enacted in 1868, essentially changed this rule. That amendment requires that the states not deprive anyone of “life, liberty or property” without due process. Nearly all the guarantees of the Bill of Rights have been interpreted by the Supreme Court as being so important that if a state denies these rights, it has in effect taken away an aspect of “liberty.”
  •     Selective incorporation: The Supreme Court has never said that due process requires the states to honor the Bill of Rights as a whole. Instead, the Court uses an approach called “selective incorporation.” Under this approach, each right in the Bill of Rights is examined to see whether it is of “fundamental” importance. If so, that right is “selectively incorporated” into the meaning of “due process” under the Fourteenth Amendment, and is thus made binding on the states.
    •     Nearly all rights incorporated: By now, nearly all rights contained in the Bill of Rights have been incorporated, one by one, into the meaning of “due process.” The only major Bill of Rights guarantees not incorporated: (1) the Fifth Amendment’s right not to be subject to a criminal trial without a grand jury indictment (so a state may begin proceedings by an “information” rather than indictment); and (2) the Seventh Amendment’s right to a jury trial in civil cases.
    •     “Jot-for-jot” incorporation: Once a given Bill of Rights guarantee is made applicable to the states, the scope of that guarantee is interpreted the same way for the states as for the federal government.