Materials developed by-
K. D. Kennedy
Political Science Department
College Of San Mateo

Lesson Five: "Other Amendments"

O'Connor and Sabato, Chapter 5, (pages 178-195)

Define "Due Process". Where is phrase located in the Constitution?

What are the "Miranda" Warnings? What case do they come from?

Remember, midterm questions are NOT multiple choice. They are short (paragraph length) questions that tend to be specific and definitional. Watch carefully for hints on the answers embedded in the chapter discussions. Often there are answers that are part text and part discussion. You can always check your answers with me by email.

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There are no questions on the final from this chapter. (They don't start until chapter 7)

"Due Process" is one of the most important phrases in the Constitution. It is located in the 5th and 14th Amendments where it applies to the federal government and to the states respectively. In general, it requires notice, hearing, and impartial judge. But that is not what is meant necessarily in the constitutional sense. Constitutionally, "due process" has two separate meanings. (1) the rather easier to understand "procedural due process" which defines which steps must occur in the judicial process. For example, Miranda warnings and right to counsel are required elements in procedural due process, so is jury trial. Any of them or most elements of amendments 4, 5, 6 and 8 are definitive of "procedure due process". (2) an even more subtle meaning of due process is referred to as "substantive due process" Substantive due process has two separate meanings, both of which are important. Substantive due process requires that the law itself be fair in its substance, that it use reasonable categories and clear definitions of illegal behavior. Some "loitering" laws have been struck down because the description was too vague to know what the person was being accused of. A second and very important meaning of substantive due process is that it incorporates the "substantive" rights in the First Amendment. For example, freedom of speech is not a "procedure". Freedom of religion is not a procedural question. The importance of this last meaning of substantive due process is to be found in selective incorporation described below. What good would it be to incorporate say right to counsel into the due process clause of the 14th Amendment to apply it to the states (see Gideon v. Wainwright, 1963) and leave out freedom of speech or press. The Court wisely incorporated the more important freedoms of the first amendment, but since they weren't "procedural" they were incorporated as substantive rights.

SELECTIVE INCORPORATION

The other idea I wanted you to be clear on is a complication one. It is also a bit counter-intuitive. As children we were taught that we had "rights" as expressed in the Bill of Rights. What I now have to tell you is that not all of the Bill of Rights protects you in the same way. You will see the phrase in the text "selective incorporation". This has nothing to do with corporations. It has to do with this. The Bill of Rights was originally only a restriction on the federal government. States originally WERE NOT required to abide by them. Note the words of the beginning of the Bill of Rights, i.e. "Congress shall make no law, etc.". Congress is the subject, not the states. But as the text describes, we gradually began to apply SOME parts of the Bill of Rights (hence "selective") to the states through the use of the "due process" clause of the 14th Amendment. In a sense, elements of the Bill of Rights were "incorporated" into the 14ths "due process" clause and thereby applied to the states. Viola! Selective Incorporation.

Only "fundamental" protections have been incorporated. This involves most or all of Amendments 1, 4, 5, 6, and 8. Grand jury indictment and bail have notably been left out. Amendments 2, 3, 7, 9, and 10 are mostly not addressed to the states. For example, Amendment 3 prohibiting the quartering of soldiers is aimed only at the federal government since states are forbidden to keep soldiers (as distinct from militias). Three of the amendments have never been the subject of a significant case so we have no authoritative court interpretation.

A note about Miranda. Miranda v. Arizona, 1966 actually brought together several previous cases and is somewhat misunderstood by the public. You CAN be arrested without being "mirandized", but any interrogation would be unusable in a court against you until you have been warned. Be sure you understand and can list the key elements of the Miranda warning. There is also an unspoken element in the warning which is part of the Miranda rules, And that is, that the defendant may terminate the interrogation by asking for an attorney to be present or by stating that he wishes to answer no questions without the presence of an attorney. The police call this "lawyering up". At first Miranda was regarded as a serious restriction on the ability of police to interrogate suspects, and after all the bible says that confession is good for the soul. Today, police are generally quite expert at using and dealing with Miranda and are only seriously inhibited in capital cases.

A great book on the development of "due process" and in particular an element in the Miranda warnings is the very excellent:
Anthony Lewis, Gideon's Trumpet, Vintage Books, 1989

This area contains a few links to sites that have material that applies to the subject. I hope to expand this as we go along and invite you to send links to me when you find interesting material that you think is relevant. Good Hunting. The text site is always included as the first link.