Principle behind the Due Process Clause: The state must treat presons fairly.
OVERVIEW OF THE DUE PROCESS CLAUSE: The Due Process Clause includes both procedural and substantive aspects. On the procedural side, it effects civil and criminal law in different ways. In civil law, procedural due process means the right to not be dragged into a foreign jurisdiction to be sued, the opportunity to be heard, the right to be put on notice when sued (inter alia). In criminal law, procedural due process means the state has the burden of proving a criminal defendant guilty beyond a reasonable doubt, the right to a speedy trial, etc. The Supreme Court ruled, in In re Winship, that the rights of the Bill of Rights are due process requirements, as well as others (as detailed later).
The question of whether due process includes substantive law as well as procedural is the subject of a 500-year debate. Where the idea of equal protection is a more American notion, the idea due process is much older. Substantive due process means that the government may not infringe upon fundamental liberties absent a compelling interest. A woman's right to choose to have an abortion is considered a fundamental right, as an extension of the right to privacy (considered implicit in the Fourteenth Amendment's guarantee of "liberty").
HISTORY: The idea of finding fundamental rights (like the right to privacy) not explicitly ennumerated in the Bill of Rights fell out of vogue with the Roosevelt appointments to the Supreme Court. Before these appointees joined the Court, the Court had blocked many key New Deal programs aimed at regulating the economy on the theory that they violated substantive due process. The minimum wage, for example, was considered a violation of the right to contract. Substantive due process was dusted off for Roe v. Wade, in which the Court found that outlawing abortion violated a woman's right to privacy and, therefore, substantive due process.
CASES: Carey v. Population Services International; Planned Parenthood v. Casey; Bowers v. Hardwick; Littlejohn v. Rose; Cruzan v. Director, Missouri Dept. of Health; DeShaney v. Winnebago County Dept. of Social Services; Walker v. Superior Court; Village of Belle Terre v. Boraas; Moore v. City of East Cleveland; Loving v. Virginia; Zablocki v. Redhail; Baker v. Nelson
DATES: Tuesday, September 28; Wednesday, September 29; Thursday, September 30