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3.9 Amendments: Due Process and the Right to Privacy

7 min readjanuary 31, 2023

Annika Tekumulla

Annika Tekumulla

Riya Patel

Riya Patel


AP US Government 👩🏾‍⚖️

240 resources
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Introduction

The Due Process Clause of the 14th Amendment to the U.S. Constitution guarantees that no state shall "deprive any person of life, liberty, or property, without due process of law." This has been interpreted to include procedural protections for individuals in the criminal justice system, as well as protection against arbitrary government actions that interfere with life, liberty, or property.
The Right to Privacy is not explicitly mentioned in the U.S. Constitution, but it has been inferred from several provisions, including the Due Process Clause of the 14th Amendment. The right to privacy has been used to protect a wide range of individual liberties, such as the right to use birth control, the right to obtain an abortion, and the right to marry.

Procedural Due Process

Procedural Due Process is a fundamental principle in the United States legal system that requires the government to follow fair and just procedures when it takes away a person's life, liberty, or property. It is protected by the Due Process Clause of the Fifth and Fourteenth Amendments to the U.S. Constitution.
Procedural Due Process requires that individuals be given notice of the charges against them and an opportunity to be heard and defend themselves. It also requires that government actions be impartial and based on reliable evidence, and that individuals have the right to a fair and impartial hearing before an independent and impartial decision-maker.
In the context of criminal trials, procedural due process requires that defendants be given the right to counsel, the right to confront witnesses, and the right to a fair and impartial jury. In the context of administrative proceedings, procedural due process requires that individuals be given the opportunity to participate in hearings, provide evidence, and cross-examine witnesses.
Overall, procedural due process is an important safeguard for individual rights and liberties, and helps to ensure that the government acts fairly and justly when taking away a person's life, liberty, or property.

“Incorporation” of the Bill of Rights Against the States

"Incorporation" refers to the process by which provisions of the U.S. Bill of Rights (the first ten amendments to the U.S. Constitution) have been made applicable to the states through the Due Process Clause of the Fourteenth Amendment.
Before the incorporation of the Bill of Rights, the protections of the Bill of Rights only applied to the federal government and not to the states. However, in the early 20th century, the U.S. Supreme Court began to incorporate certain provisions of the Bill of Rights, such as the First Amendment's guarantee of freedom of speech, the Fourth Amendment's protection against unreasonable searches and seizures, and the Fifth Amendment's protection against self-incrimination, through the Due Process Clause of the Fourteenth Amendment.
Today, nearly all provisions of the Bill of Rights have been incorporated against the states, meaning that they apply to the states in the same manner as they apply to the federal government. This has had a significant impact on individual rights and freedoms, and has helped to ensure that individuals are protected against government abuse and overreach at both the federal and state levels.

Substantive Due Process

Substantive Due Process is a legal doctrine that holds that certain fundamental rights are so important that they cannot be abridged by the government without a compelling reason. It is an aspect of the Due Process Clause of the Fifth and Fourteenth Amendments to the U.S. Constitution.
Substantive Due Process protects individual rights that are not explicitly mentioned in the U.S. Constitution, but that are considered essential to liberty and the pursuit of happiness. Examples of such rights include the right to privacy, the right to marry, the right to procreate, and the right to direct the upbringing and education of one's children.
The U.S. Supreme Court has used the substantive due process doctrine to strike down laws that infringe upon these fundamental rights, even if the laws are procedurally fair and just. The Court has also used the doctrine to define the contours of individual rights, such as the right to privacy and the right to an abortion.
Overall, the substantive due process doctrine is an important aspect of individual rights and liberties in the United States, and helps to ensure that the government cannot infringe upon essential rights without a compelling reason.

Key Terms

  • Due Process Clause: A clause in the 14th Amendment to the U.S. Constitution that guarantees that no state shall "deprive any person of life, liberty, or property, without due process of law."
  • Right to Privacy: The right of individuals to be free from unreasonable governmental intrusion into their personal lives, including their thoughts, beliefs, expressions, and intimate relationships.
  • 14th Amendment: An amendment to the U.S. Constitution that was ratified in 1868. It includes the Due Process Clause and the Equal Protection Clause, which requires that states provide equal treatment to all citizens under the law.
  • Life: The right to life is a fundamental human right that is protected by the Due Process Clause of the 14th Amendment.
  • Liberty: The right to liberty is a fundamental human right that is protected by the Due Process Clause of the 14th Amendment. It includes the freedom from arbitrary detention, the freedom of movement, and the freedom of expression.
  • Property: Property refers to a person's possessions or belongings. The Due Process Clause of the 14th Amendment protects an individual's right to own and control their property.
  • Procedural protections: Rules and procedures that ensure fairness and justice in the criminal justice system. The Due Process Clause of the 14th Amendment requires that individuals receive these protections when facing criminal charges.
  • Equal Protection Clause: A clause in the 14th Amendment to the U.S. Constitution that requires states to provide equal treatment to all citizens under the law.
  • Substantive Due Process: The idea that certain fundamental rights, such as the right to privacy, are so important that they cannot be abridged by the government without a compelling reason.
  • Incorporation Doctrine: The legal principle that the protections of the Bill of Rights, including the Due Process Clause of the 14th Amendment, apply to the states through the 14th Amendment.
  • Unreasonable Search and Seizure: A concept protected by the Fourth Amendment to the U.S. Constitution, which prohibits the government from conducting unreasonable searches and seizures of individuals and their property.
  • Individual Autonomy: The right of individuals to make their own decisions and control their own lives, free from government interference. The Right to Privacy has been used to protect individual autonomy in areas such as family planning, sexual activity, and medical decisions.
  • Intimate Relationships: Relationships between individuals that are characterized by emotional or physical intimacy, such as marriage, dating, and sexual relationships. The Right to Privacy has been used to protect individuals' privacy in intimate relationships.

Important Cases to Know

Griswold v. Connecticut (1965)

This case established the right to privacy as a constitutional right and struck down a state law that prohibited the use of contraceptives.

Roe v. Wade (1973)

This case established the constitutional right to obtain an abortion and established a woman's right to privacy in making decisions about her own body.

Palko v. Connecticut (1937)

This case established the principle of "substantive due process," which holds that certain fundamental rights are so important that they cannot be abridged by the government without a compelling reason.

Mapp v. Ohio (1961)

This case held that the exclusionary rule, which prohibits the use of illegally obtained evidence in criminal trials, applies to the states through the 14th Amendment's Due Process Clause.

Gideon v. Wainwright (1963)

This case established the right to counsel in criminal trials for indigent defendants and held that this right applies to the states through the 14th Amendment's Due Process Clause.

Eisenstadt v. Baird (1972)

This case struck down a state law that prohibited the distribution of contraceptives to unmarried individuals and established the right of unmarried individuals to use contraceptives on the same basis as married individuals.
These cases have helped to shape and define the constitutional protections of Due Process and the Right to Privacy, and continue to have significant impacts on individual rights and freedoms in the United States.

Key Takeaways

  • The Due Process Clause of the 14th Amendment guarantees that no state shall "deprive any person of life, liberty, or property, without due process of law," and requires procedural protections for individuals in the criminal justice system.
  • The Right to Privacy has been inferred from several provisions of the U.S. Constitution, including the Due Process Clause of the 14th Amendment, and has been used to protect a wide range of individual liberties, such as the right to use birth control and the right to obtain an abortion.
  • The Equal Protection Clause of the 14th Amendment requires states to provide equal treatment to all citizens under the law.
  • The substantive due process doctrine holds that certain fundamental rights, such as the right to privacy, are so important that they cannot be abridged by the government without a compelling reason.
  • The incorporation doctrine holds that the protections of the Bill of Rights, including the Due Process Clause of the 14th Amendment, apply to the states through the 14th Amendment.
  • Cases such as Griswold v. Connecticut and Roe v. Wade have established the right to privacy as a constitutional right and have had significant impacts on individual rights and freedoms in the United States.
  • Cases such as Mapp v. Ohio and Gideon v. Wainwright have established important procedural protections for individuals in the criminal justice system.

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