CHAPTER 10 Due Process Topics 3,7-3.9 Topic 3.7 Selective Incorporation LOR-3.A: Explain the implications ofthe doctrine of selective incorporation, ~ Required Foundational Document: + The Constitution ofthe United States ~ Required Supreme Court Case: + MeDonald v. Chicago (2010) Topic 3.8 Amendments: Due Process and the Rights of the Accused LOR-3.8: Explain the extent to which states are limited by the due process clause from infringing upon individual rights ~ Required Supreme Court Case: + Gideon v. Wainwright (1963) Topic 3.9 Amendments: Due Process and the Right to Privacy LOR-3.8: Explain the extent to which states are limited by the due process clause from infringing upon individual rights ~ Required Foundational Document: + The Constitution ofthe United States ~ Required Supreme Court Case: + Roe v. Wade (1973) bue Process 3113.7 Selective Incorporation “For present purposes, we may and do assume that freedom of speech and of the press... are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth ‘Amendment from impairment by the States.” —lustice Edward Sanford, Gittow v New York, 1825 Essential Question: What are the implications of the doctrine of selective incorporation? A attevets of government adhere to most elements ofthe Bill of Rights, but that wasn't always the case, The Bill of Rights was ratified to protect the people from the federal government. The document begins with the First Amendment addressing what the government cannot do. “Congress shall make no law” that violates freedoms of religion, speech, press, and assembly. The document then. ‘goes on to address additional liberties Congress cannot take away. Most states, had already developed bills of rights with similar provisions, but states did not originally have to follow the national Bill of Rights because it was understood that the federal Constitution referred only to federal laws, not state laws. Incorporating the Bill of Rights The Supreme Court has ruled in landmark cases that state laws must also adhere to certain Bill of Rights provisions through the Fourteenth Amendment's due process clause. The process of declaring only certain, or selected, provisions of the Bill of Rights applicable to the states rather than all of them at once is known as selective incorporation. “The concept of fundamental fairness that ensures legitimate government in a democracy is due process. It prevents arbitrary government decisions to avoid mistaken or abusive taking of lif, liberty, or property (including money) from individuals without legal cause. (See ‘Topic 3.8.) ‘The question of whether the Bill of Rights limited the federal government only, or also the states, was originally answered in the 1833 case Barron ¥. Baltimore. Justice John Marshall's Court made clear that states, ifnot restrained by their own constitutions or bills of rights, did not have to follow the federal Bill of Rights. 312 _ UNITED STATES GOVERNMENT & POLITICS: AP" EDITIONFourteenth Amendment Decades after the Barron case, the ratification of the Fourteenth Amendment (41868) in the aftermath of the Civil War strengthened due process. Before and during the Civil War, southern states placed many restriction on the basic liberties of African Americans and white citizens who tried to defend African American rights. Afler the war, Union leaders questioned if Southern states ‘would comply with new laws that protected due process, especially for former slaves. Would an accused African American man receive a fair and impartial jury at his trial? Could an African American defendant refuse to testify in court, as a white person could? To ensure the states followed these commonly accepted principles in the federal Bill of Rights and in most state constitutions, Republicans in the House of Representatives drafted the most important and far-reaching of the Reconstruction Amendments, the Fourteenth. It declares that “all persons born or naturalized in the United States... are citizens” and that no state can “deprive any person of life, liberty, or property, without due process of law” Pertanian oe Ge ten ees ‘Selective Incorporation Case Ruling ‘Amendment Everson v Board of Education | States that reimburse parents for First 327) ‘ransportation costs to get their children to parechial schools did not violate the Constitution ‘MeDonald v. Chicago (2010) | The Second Amendment must be Second protected by states based on the due process clause of the Fourteenth ‘Amendment. (See pages 315-316.) ‘Mapp v. Ohio (1961) Evidence obtained in a manner Fourth ‘that violated Fourth Amendment protections was inadmissible in state Courts too, (See Topic 3.8} Chicago, Burlington & Quincy | The requirement for just compensation, | Fifth Railway Co. [Link] (1887) | from the Fifth Amendment, appios hen state government takes property. Gideon v. Wainwright (1963) | States must provide an attorney for | Sixth defendants who can't aford one to guarantee a fir tral. (See Topic 3.8) Timbs w Indiana (2019) State seizure ofa convicted drug Eighth dealer's vehile was a Violation of the Eighth Amendment's prohibition of excessive fines, Required Supreme Court cases are bold SELECTIVE INCORPORATION 313Early Incorporation The first incorporation case used due process to evaluate issues of property seizure. In the 1880s, a Chicago rail line sued the city, which had constructed a street across its tracks. In an 1897 decision, the Court held that the newer due process clause compelled Chicago to award just compensation when taking private property for public use, This ruling incorporated the just compensation clause of the Fifth Amendment, requiring that the states adhere to it as wel. Incorporation and the First Amendment Later, the Supreme Court declared that the First Amendment prevents states from infringing on free thought and free expression, In a series of cases that addressed state laws designed to crush radical ideas and sensational journalism, the Court began to hold states to First Amendment standards. In the 1920s, Benjamin Gitlow, a New York Socialist, was artested and prosecuted for violating the states criminal anarchy law. ‘The law prevented advocating a violent overthrow of the government. Gitlow was arrested for writing, publishing, and distributing thousands of copies of pamphlets called the Left Wing Manifesto that called for strikes and “class action . .. in any form.” Inone ofits first cases, the American Civil Liberties Union (ACLU) appealed his case and argued that the due process clause of the Fourteenth Amendment compelled states to follow the same free speech and free press ideas in the First, Amendment as the federal government. In Gitlow v. New York (1925), however, the Court actually enhanced the state's power by upholding the state's criminal anarchy law and Gitlow’s conviction because Gitlow’s activities represented a threat to public safety. The court felt the substantive reason for the states limitation of Gitlow’s message was justified to preserve order. Nonetheless, the Court did address the question of whether or not the Bill of Rights did or could apply to the states. In the majority opinion, the Court said, “For present purposes, we may and do assume that freedom of speech and of the press aare among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States” In other words, Gitlow’s free speech was not protected because it was a threat to public safety, but the Court did put the states on notice. ‘The Court applied that warning in 1931. Minnesota had attempted to bring outrageous and obnoxious newspapers under control with a public nuisance law, informally dubbed the "Minnesota Gag Law.” This statute permitted a judge to stop obscene, malicious, scandalous, and defamatory material. A hard- hitting paper published by the controversial .M. Near printed anti-Catholic, anti-Semitic, anti-Black, and anti-labor stories. Both the ACLU and Chicago newspaper mogul Robert McCormick came to Nears aid, not for his beliefs, but on anti-censorship principles. The Court did too. In Near ». Minnesota it declared that the Minnesota statute “raises questions of grave importance. It is no longer open to doubt that the liberty of the press is within the liberty safeguarded by the due process clause of the Fourteenth Amendment. In this ruling, through the doctrine of selective incorporation, the Court imposed limitations on state regulation of civil rights and liberties. 314 _ UNITED STATES GOVEANMENT & POLITICS: AP" EDITIONItis appropriate that the Court emphasized the First Amendment freedoms carly on in the incorporation process. The founding fathers generally believed that states, too, should not take away the freedoms in the First Amendment. In drafting the Bill of Rights in 1789, James Madison and others had originally stated, "No state shall infringe on the equal rights of conscience, nor the freedom of speech, or of the press” It was the only proposed amendment directly limiting states’ authority. In case after case, the Coust has required states to guarantee free speech, freedom of religion, fair and impartial juries, and rights against incrimination, Though states have incorporated nearly all rights in the document, a few rights in the Bill of Rights remain denied exclusively to the federal government but not yet denied to the states. ICDONALD V. CHICAGO (2010) ‘The Constitutional Question Before the Court: Does the Second Amendment apply to the states, by way of the Fourteenth Amendment, and thus prevent states or their political subdivisions from banning citizen ownership of handguns? Decision: Yes, for McDonald, 5:4 Before McDonald: The Second Amendment prevents the federal government from {forbidding people to keep and bear arms. In 2008, gun rights advocates and the ‘National Rifle Association challenged law in the Distict of Columbia, the seat of the federal government, which effectively banned all handguns, except those for law tenforcement officers and other rare exceptions In the case of District of Columbia v Heller, the Court ruled that the Second Amendment applied and that the district's handgun ban violated ths right. Because the Bill of Rights was intended to restrain Congress and the federal government, not the states, this ruling applied only to ‘the federal government and did not incorporate the Second Amendment to state governments, Any existing state laws preventing handguns were not altered by this, precedent—until Otis MeDonald came to court. Facts: Citizens in both Chicago and in the nearby suburb of Oak Park challenged policies in their cities that were similar to the ones struck down in Washington, Chicago required all gun owners to register guns, yet the city invariably refused to allow citizens to register handguns, creating an effective ban, The lead plain, tis MeDonald, pointed to the dangers of his crime-ridden neighborhood and how the city’s ban had rendered him without self-defense, and he argued that the Second ‘Amendment should have prevented this vulnerability His attorneys also attempted to ‘ake the Heller decision further, extending its holding to the state governments via the Fourteenth Amendment's due process clause. Reasoning: In a close vote, the Court applied the Second Amendment to the states via the Fourteenth Amendment's due process clause, arguing that, based on Heller, the right to individual self-defense is at the heart of the Second Amendment. The ‘majority also noted the historical context for the Fourteenth Amendment and asserted ‘that the amendment sought to provide a constitutional foundation forthe Civil Rights SELECTIVE INCORPORATION 315Act of 1866. The selective incorporation doctrine has encouraged the Court to require state governments and their political subdivisions to follow most parts ofthe Bill of Rights. The ruling in MeDonaid highlighted yet another right that the states and their ‘municipalities could not deny citizens. Justice Samuel Alto wrote the Court's majority opinion; Justices Antonin Scalia and Clarence Thomas wrote concurring opinions. Majority Opinion by Mr. Justice Alito: Self-defense is a basic right, recognized by ‘many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is the central component” of the Second Amendment right [T]he Court found that ths right applies to handguns because they are "the ‘most preferred firearm in the nation to ‘keep’ and use for protection of one's home ‘nd family... t thus concluded that citizens must be permitted "to use [handguns] for the core lawful purpose of self-defense"... Heller also clarifies that ths right is "deeply rooted in this Nation's history and traditions! ‘A survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear ‘arms among those fundamental rights necessary to the Nation's system of ordered liberty After the Civil War, the Southern States engaged in systematic efforts to disarm and injure African Americans. These injustices prompted the 33th Congress to pass the Freedmen's Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the right to keep and bear arms. Congress, however, Ultimately deemed these legislative remedies insufficient, and approved the Fourteenth Amendment. Today, itis generally accepted that that Amendment was understood to provide a constitutional basis for protecting the rights set ‘out in the Civil Rights Act. Evidence from the period immediately following the ‘Amendment's ratification confirms that that right was considered fundamental, Political Science Disciplinary Practices: Explain How the Court's Decision Relates to Political Principles Justice Alito refers tothe Fourteenth Amendment as the basis forthe right to bear arms. Legisiation passed by the 38 Congress (1865-1867) used the Fourteenth ‘Amendment, ratified in 1868, to further extend the right to bear arms to African ‘Americans. Examine how the Court's decision relates to the Heller decision and other principles by answering the questions below. ‘Apply: Complete the following tasks 1. Explain the similarities and differences of the Heller and MeDonald cases. 2, Identity the historic period to which Justice Alito referred in the majority opinion land explain the reasoning behind referring to this period, '3 Explain the impact ofthe McDonald ruling on the selective incorporation doctrine, 316 UNITED STATES GOVERNMENT & POLITICS: AP" EDITIONAfter Heller and McDonald ‘the Heller and McDonald decisions partially govern gun policy in the United States, but the Court has done litte to define gun rights and limits since, It declined to hear cases on assault weapons bans from Maryland and from a Chicago-area municipality. The Court has also declined to rule on a restrictive California limitation on who may carry concealed guns. Congressional members are typically at loggerheads over gun policy. After each nationally notable mass shooting, the discussion about the Second Amendment becomes loud and intense, but little national law changes. Republicans tend to fiercely defend citizens’ rights to own and carry guns, while Democrats tend to seek stronger restrictions on sale, ownership, and public possession. Presidential policy has shifted with changes in office. After a deranged young man shot and killed 20 schoolchildren and 6 adults in Newtown, Connecticut, President Barack Obama issued an executive order to keep guns out of the hands of mentally disabled Social Security recipients. President Donald Trump, a gun advocate, reversed the order in 2017. ‘Otis McDonald ouside the Supreme Court bling. Ie was he lea paintfin the McDonald ‘Chicago (2010) caren which the Court overrned aban on handgun by the cy of Chicago. THINK AS A POLITICAL SCIENTIST: EXPLAIN HOW A REQUIRED ‘SUPREME COURT CASE RELATES TO A PRIMARY SOURCE A primary source, also called an original source, isa firsthand account of an event or situation, Primary sources tend to be reliable because they come from people who have a direct connection to a topic or event. An opinion from a SELECTIVE INCORPORATION 317Supreme Court justice is a primary source—the original, firsthand explanation of a legal ruling. Supreme Court opinions, like other primary sources, are often called on again and again to determine interpretation of law. For example, the Supreme Court ruling in McDonald v. Chicago was a victory for gun rights, but how would subsequent gun-related cases be interpreted by the Court? In Voisine v. United States (2016), the plaintiff had been convicted of causing reckless bodily injury to a romantic partner. Under Maine law it is a crime to own firearms after a misdemeanor conviction for domestic violence. Stephen Voisine claimed that reckless injury doesn't meet the federal standard for conviction and wanted charges dismissed. He lost in district and appellate courts. ‘The Supreme Court also ruled against Voisine Practice: The excerpt is the majority opinion from Justice Kagan, Read the excerpt and answer the questions below. "The federal ban on firearms possession applies to any person with a prior misdemeanor conviction forthe ‘use... of physical force’ against a domestic relation, ‘That language, naturally read, encompasses acts of force undertaken recklessly. ‘with conscious disregard of a substantial risk of harm, And the state-law backdrop +o that provision, which included misdemeanor assault statutes covering reckless ‘conduct in a significant majority of jurisdictions, indicates that Congress meant just what it said. Each petitioner's possession of a gun, following a conviction under Maine law for abusing a domestic partner, therefore violates [Maine's gun laws]. We accordingly affirm the judgment of the Court of Appeals: 1. What similarities can you find between the decisions in the McDonald and Volsine cases? 2, How do the cases and the decisions ditfer? REFLECT ON THE ESSENTIAL QUESTION Essential Question: What are the implications of the doctrine of selective incorpo: ration? On separate paper, complete the chart below. Selective Incorporation Cases Rulings’ Effects on States’ Rights KEY TERMS AND NAMES. District of Columbia v Helle (2008) just compensation clause due process McDonald v. Chicago (2010) Fourteenth Amendment (1868) selective incorporation 318 UNITED STATES GOVERNMENT & POLITICS: AP" EDITION3.8 Amendments: Due Process and the Rights of the Accused “Ways someday may be developed by which the government... will be enabled to expose to a jury the most intimate occurrences in the home.’ use Louis Brandeis, Olmstead v United States, 1928 Essential Question: To what extent are states limited by the due process clause from infringing upon individual rights? The united states has struggled to fully interpret and define phrases in the Bill of Rights and has done so differently at different times. Justice Louis Brandeis’s quote above—from his dissent in an early FBI wiretapping case speaks to his concern for citizens’ rights to privacy and protection from government intrusion into the home as basic wiretapping technology enabled the government to create a surveillance state. Brandeis could not have known how righthe was in his prediction of the technological possibilities of invading, citizens dwellings, personal information, and everyday routines. ‘Ihe new technologies raise a familiar question: What is the proper balance between liberty and order? ETEHEEZ Government laws and policies balancing order and liberty are based on the U.S. Constitution and have been interpreted differently over time, Procedural Due Process ‘The right to due process dates back to England's Magna Carta (1215), when nobles limited the king’ ability to ignore their liberties. Due process ensures fair procedures when the government burdens or deprives an individual. Due process also ensures accused persons a fair trial. The due process clause in the Fifth Amendment establishes that no person shall be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” “There are two types of due process: procedural and substantive. Procedural due process addresses the manner in which the law is carried out. Substantive due process (see Topic 3.9) addresses the essence of a law—whether the point of the law violates a basic right to life, liberty, or property. Both types of due process apply to the federal and state governments through the Fifth and Fourteenth Amendments. ‘These measures prevent government from unfairly AMENDMENTS: OUE PROCESS AND THE RIGHTS OF THE ACCUSED 319depriving citizens of their freedoms or possessions without being heard or receiving fair treatment under the authority of law. The concept ensures that government is consistently fair and does not act arbitrarily on unstable whims. ‘The government can take away life, iberty, and property, but only in a highly specific, prescribed manner. As one Supreme Court justice wrote in an early decision, “The fundamental requisite of due process of law is the opportunity tobe heard” As the Court interpreted and defined due process in various cases, it also selectively required states to follow additional rights from the Bill of Rights, thus expanding the incorporation doctrine. Procedural due process refers to the way in which a law is carried out. For example, did the local court give the defendant a fair trial? Did the zoning board accurately appraise the value of the citizen's house before seizing it under its legal powers? Were the suspended students given a chance to explain their side of the story? Such questions arise in cases that have defined the concept of due process nationally. Under the leadership of Chief Justice Earl Warren (1953-1969), the Court extended liberties and limited state authority in areas of search and seizure, the right to legal counsel, and the right against self- incrimination during police interrogations. Fourth Amendment and the Exclusionary Rule The Fourth Amendment prevents law enforcement ftom conducting ‘unreasonable searches and seizures. (See Topic 3.6.) In 1914, in Weeks v. United States, the Court established the exclusionary rule, which states that evidence the government finds or takes in violation of the Fourth Amendment can be excluded from trial. This decision protected the citizenry from aggressive {federal police by reducing the chances of conviction. The justice system rejects evidence that resembles the “fruit of the poisonous tree)” as Justice Felix Frankfurter called evidence tainted by acquisition through illegal means. In 1961, the Court incorporated the exclusionary rule to state law enforcement. Seven police officers broke into Dollree Mapps Cleveland house in search of a fugitive suspect and gambling paraphernalia. The police found no person or evidence related to either suspect or paraphernalia, but they did find some obscene books and pictures. Mapp was convicted on obscenity charges and sent to prison, When her case arrived in the Supreme Court, the justices ruled the police had violated her rights and should never have discovered the illegal contraband. Mapp v. Ohio (1961) became the selective incorporation case for the Fourth Amendment. Since that ruling state laws must abide by the Fourth Amendment. Chief Justice Burger's Court later refined the exclusionary rule to include the “inevitable discovery” and “good faith’ exceptions. he inevitable discovery exception applies to evidence police find in an unlawful search but would have eventually found in a later, lawful search, The good faith exception, addresses police searches under a court-issued warrant that is later proven unconstitutional or erroneous. In such instances, the police conducted the search under the good faith that they were following the law and thus have not 320 UNITED STATES GOVEANMENT & POLITICS: AP" EDITIONabused or violated the Fourth Amendment. Evidence discovered under these exceptions will likely be admitted at trial Searches in Schools As the Tinker decision already stated, students’ constitutional rights do not stop at the schoolhouse gate, though that decision addressed free speech. However, students in school have fewer protections against searches that may violate the public interest than do average citizens in public or in their home because, within the public school context, at times the public interest argument outweighs concerns for individual liberties. ‘This issue was decided in New Jersey v. TLO (1985). After a student informed a school administrator that another student, TLO (the Court used only initials to protect this minor's identity), had been smoking in the restroom, an assistant principal searched TLO’s purse. He found cigarettes, a5, well as marijuana, rolling papers, plastic bags, a list of students who owed her money, and a large amount of cash. The administrator turned this evidence over to local authorities, who prosecuted the student. She appealed her conviction on exclusionary rule grounds. ‘The Court ruled that although the Fourth Amendment does protect students from searches by school officials, in this case the search was reasonable. School officials are not required to have the same level of probable cause as police. Students are entitled to a “legitimate expectation of privacy” the Court said, but this must be weighed against the interests of teachers, administrators, and the school’s responsibility and. mission. The New Jersey v. TLO ruling gave administrators a greater degree of leeway than police in conducting searches, requiring that they have reasonable cause or suspicion, not full probable cause. ‘What ifa student leaves a backpack behind on the bus? Can schoo! officals search it, knowing or not knowing who the owner is? That was recently answered in Ohio after a bus driver discovered a backpack left behind on his bus. He handed it over to the school security officer, who reached not too deeply into the bag to find a paper with the rightful owner's name on it. He then recalled a rumor that this student was a gang member. Then, with the principal, he emptied the bag and found bullets. The bus driver and security officer then summoned the student and searched a second bag and found a gun. The state charged the student with possession of the gun. Were these discovered items found lawfully or in violation of the Fourth Amendment? On appeal, the Ohio Supreme Court found both the initial and secondary searches were reasonable. The school’s public duty to act on unattended bags, and the student’ relinquishing his expectation of privacy by leaving the bag behind, enhanced the school’s ability to search. Ifthe bag were just unattended while the owner went to the bathroom, of course, a high expectation of privacy would have remained, ‘the Ohio court gave the administrators wide latitude on searching that bag, even if the administrators had no belief of imminent threat. Once the bullets were discovered, searching the second bag was within the school officials’ scope. AMENDMENTS: DUE PROCESS AND THE RIGHTS OF THE ACCUSED 321Source: Gey ogee ‘Whats the current ational egal standard fo schoo oficial to conduct ascrch ofa students locker, Dadkpack or person? Erring on the Side of Warrants In other recent Fourth Amendment rulings the U.S. Supreme Court has extended protections regarding cell phones, GPS locators, and narcotics-sniffing dogs at a person's front door. In one case, the Court ruled that attaching a GPS tracker to monitor a suspected drug dealer's movements and daily interactions was unconstitutional. When the challenge arrived at the Supreme Court, the government argued that a motorist moving about on the public streets does not have an expectation of privacy and their monitoring his movements did not even amount to a search. ‘The Court, however, asserted that the government invades 2 reasonable expectation of privacy when it violates a subjective expectation of privacy. All motorists realize they might be seen, but few assume all their movements are monitored for 24-hour cycles. So this was indeed a search—an unreasonable search that might have been reasonable had the police secured a warrant ahead of time. ‘A final example from Florida, in which an officer walked a drug-sniffing dog up onto a citizen’ front porch, arrived before the Court. The dog communicated to the officer that marijuana was inside the home, ‘The officer secured a warrant, came into the home, and found 25 pounds of marijuana. Appealing the conviction, the suspect and his lawyer claimed that the search had taken place on the porch long before a warrant was obtained, Law enforcement cannot search willy-nilly along citizens front porches in hopes of having their dogs smell incriminating evidence that the police can then pursue. ‘The Court was divided on this case, but for now, police cannot take drug dogs onto a resident's porch without obtaining a warrant. 322 _ UNITED STATES GOVERNMENT & POLITICS: AP" EDITIONContemporary Procedural Due Process Rights In recent years in the United States, institutions of government have shaped the interpretations of procedural due process rights in light of modern invention and a complicated war. Searches and the Electronic World Has the federal government gone too farin itsrecentendeavors o catch terrorists or to conduct searches in the era of modern communication? ‘Ihe government contends that many of the new techniques, including the third-party mining of ‘metadata—the who, when, and for-how-long details of a communication, but not the actual conversation—are in compliance with the Fourth Amendment. Metadata, according to David Cole of The Nation, “can reveal whether a person called a rape-crisis center, a suicide or drug-treatment hotline, a bookie, or a particular political organization.” Should the government be privy to such, information without probable cause or securing a particular warrant? ‘As David Gray sums up in his 2017 book ‘The Fourth Amendment in an Age of Surveillance, investigative journalists report that “every major domestic telecommunications company provided telephonic metadata to the NSA’ and that the NSA has gathered and stored metadata associated with a substantial proportion of calls made since 2006, The 2015 USA FREEDOM Act has altered the governments access to phone data, ‘The new law does not completely eliminate the collection and storage of this metadata by cell phone operators, but it does prevent the government easy access to it. The new law requires the Executive Branch to acquire a warrant to examine the metadata. September 11 and Executive Reaction ‘The USA PATRIOT Act (see Topic 1.5) was a response to the terrorist attacks on September 11, 2001, and the law raised civil liberties questions when government surveillance efforts intensified. Additional issues related to the “war on terror” also drew attention to civil iberties. ‘When President Bush declared a “war on terror? questions arose. For example, does the 1949 Geneva Convention, the international treaty that governs the basic rules of war, apply? Al-Qaeda is not a nation-state and is not a signatory (signer) of the Geneva Convention or any international treaty. In that case, does the United States have to honor Geneva provisions when acting against al-Qaeda? And does the Constitution apply to US. action beyond US. soil (especially when acting against enemies)? ‘The Bush administration categorized those captured on the ‘error battlefield—meaning basically anywhere—as “enemy combatants” and treated their legal condition differently from either an arrested criminal or a conventional prisoner of war. In the Courts ‘These legal complications and competing views on how to apply international Jaw and the Bill of Rights in a war against an enemy with no flag have caused AMENDMENTS: DUE PROCESS AND THE RIGHTS OF THE ACCUSED 323detainees and their advocates to challenge the government in court. A lower court has declared part of the USA PATRIOT Act unconstitutional, ‘The Supreme Court has addressed habeas corpus rights. “The right of habeas corpus guarantees that the government cannot arbitrarily imprison or detain someone without formal charges. Could detainees at Guantanamo Bay question their detention? ‘The president said no, but the Court said yes. Rasu y. Bush (2004) stated that because the United States exercises complete authority over the base in Cuba, it must follow the Constitution. Fred Korematsu, a Japanese American assigned to a World War II internment camp who lost his own habeas corpus claim in 1944, submitted an amicus curiae brief in support of Rasul. “Itis during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested,” Justice Sandra Day O'Connor wrote, “and itis in those times that we must preserve our commitment at home to the principles for which we fight abroad” In another case, Hamdi v. Rumsfeld (2004), the Court overruled the executive branchis unchecked discretion in determining the status of detainees. After this, the United States could not detain a US. citizen without a minimal hearing to determine the suspect's charge. In a separate case, Hamdan ¥, Rumsfeld (2006), the Court found that Bush’ declaration that these detainees should be tried in military tribunals violated the United States Code of Military Justice. The commissions themselves, wrote Associate Justice John Paul Stevens, violated part of the Geneva Convention that governed non-international armed conflicts before a “regularly constituted court . . . affording judicial guarantees... by civilized peoples” As summed up in Hamdi, “We have long, since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens” The Rights of the Accused Procedural due process also guarantees that the accused are treated fairly and according to the law. The Fifth, Sixth, and Fighth Amendments have been mostly incorporated so they apply to the states as wel. Self-Incrimination “You have the right to remain silent...” goes the famed Miranda warning. This statement also reminds arrested suspects that “anything you say can and will be used against you.” ‘The warning resulted from an overturned conviction of a rapist who confessed to his crime under some pressure and without being informed that he did not have to talk. In Miranda v. Arizona (1966), Ernesto ‘Miranda, an indigent man who never completed ninth grade, was arrested for the kidnapping and rape ofa girl in Arizona. The police questioned Miranda for ‘two hours until they finally emerged from the interrogation room with a signed confession. ‘The confession was a crucial piece of evidence at Miranda’ trial ‘Through the 1950s, the Court handled a heavy appellate caseload addressing the problem of police-coerced confessions. Many losing defendants claimed during appeal that they had confessed only under duress, while police 324 UNITED STATES GOVEANMENT & POLITICS: AP" EDITIONtypically insisted the confessions were voluntary. The Fifth Amendment states, “nor shall [anyone] be compelled in any criminal case to be a witness against himself” Since a number of related cases about police procedures were reaching. the Court, the justices took Miranda's case and created a new standard. In Miranda, the Court declared the Fifth Amendment right applies once a suspect is in custody of the state. It declared that custodial interrogation carries, with it a badge of intimidation. If such pressures from the state are going to occur, the police must inform the suspect of his or her rights. Civil libertarians hailed the Miranda ruling, while conservatives and law enforcement saw it as, tying the hands of the police, Miranda received a new trial that did not use his confession. Additional proof, it turned out, was enough to convict this rapist. He went to prison while changing the national and state due process law. THINK AS A POLITICAL SCIENTIST: USE REASONING TO ANALYZE EVIDENCE AND JUSTIFY A CLAIM ‘Technological advances have complicated the definition and interpretation of the Fourth Amendment. These advances have forced the Supreme Court to consider when and how technology can be used as evidence. Further complicating the matter are questions about the constitutionality of technologies used by the government to protect public safety. In Riley y. California (2014), David Riley was pulled over for driving with expired registration tags, and officers discovered he was driving on a suspended license as well. Before the car was impounded, it was searched and two guns were found. Riley was arrested for illegal possession of firearms and his cell phone was taken. His phone was analyzed, without warrant, and authorities discovered images and videos showing gang affiliation. This affiliation led to further investigation and police determined the guns found in Riley's car were used in a gang-related shooting. Because the analysis of the cell phone that Jed investigators to the gang connection was obtained without a warrant, Riley wanted the evidence thrown out. Based on the information the police had, did they have the authority and right to search for evidence on his phone? Practice: From Topic 36, review the Fourth Amendment, Mirands v. Arizona, and the USA FREEDOM Act, Using evidence from those laws and the Miranda ruling, develop 2 claim about how the Court would rule on the case above, Use reasoning to explain how the evidence sunports and justifies the claim you develo. Public Safety Exception A number of subsequent cases have allowed statements into court that were obtained before a suspect was warned of his or her rights. Courts have said that if the officer was acting in the name of public safety, a delayed reading or failure to read the warning would not necessarily exclude confessions or statements at, court. his approach is known as the public safety exception, which puts the protection of people before procedural protections for suspects. AMENDMENTS: DUE PROCESS AND THE RIGHTS OF THE ACCUSED 325In the first public safety exception case, New York v. Quarles (1984), police chased Benjamin Quarles, who had been identified as assaulting a woman and carrying a gun, into a grocery store. After a search, the police found an empty gun holster. ‘The police asked Quarles where the gun was, and Quarles indicated it was in an empty milk carton, In the original case, the suspect’ attorneys tried to have Quarles’ statement on the location of the gun and the gun itself suppressed from evidence because he had not been warned of his rights against self-incrimination, or “Mirandized” When the case reached the Supreme Court, however, the Court reasoned that although the suspect was surrounded by police, he was not otherwise coerced to answer the question, and the question ‘was necessary to protect the public from the danger of a loaded gun. Later cases upheld the public safety exception. If the questioning is for the purpose of neutralizing a dangerous situation, and a suspect responds, voluntarily, the statement can be used as evidence even though it was made before the Miranda rights were read. Right to Counsel “If you cannot afford an attorney, one will be appointed for you.” the Miranda ‘warning continues. This wastit always the case, Though the Sixth Amendment's right to counsel has been in place since the ratification of the Bill of Rights, it was first merely the right to have a lawyer present at trial, and, as with the rest of the Bill of Rights, it originally applied only to defendants in federal court. In a series of cases starting in the 1930s, the Supreme Court developed its view of right to counsel in state criminal cases, The first established that when the death penalty ‘was possible, the absence of counsel amounted to a denial of fundamental fairness. In 1942, the Court ruled in Betts v. Brady that refusal to appoint defense counsel in noncapital cases did not violate the amendment, but that the state did have to provide counsel when defendants had special circumstances, like incompetency or illiteracy. These precedents were shaped further with Gideon v. Wainwright (1963).. MUST-KNOW SUPREME COURT DECISIONS: GIDEON V. WAINWRIGHT (1963) ‘The Constitutional Question Before the Court: Does 3 state's prosecution ofa criminal defendant without counsel constitute a violation ofthe Sixth Amendment's right to counsel? Decision: Yes, for Gideon, 9:0 Facts: Clarence Earl Gideon, a drifter who had served jail time in four previous instances, was arrested for breaking and entering a Florida pool hall and stealing some packaged Ps drinks and coins from a cigarette [Link] came tohis =a ‘rial expecting the local court to appoint him a lawyer because source stat of Herds he had been provided one in ather states in pravious trials. Clarence Eat Gideon 326 UNITED STATES GOVEANMENT & POLITICS: AP" EDITION‘The Supreme Court had already ruled that states must provide counsel in the case of {an indigent defendant facing the death penaity, or in 9 case in which the defendant has special circumstances, such as iliteracy or psychological incapacity. At the time of Gideon's tral, 45 states appointed attorneys to all indigent defendants. Florida, however, did not Gideon was convicted and sent away to Florida's state prison in Raiford, From prison, Gideon fled an in forma pauperis brief with the Supreme Court, a procedure "in the form of a pauper" available to those who believe they were wrongly convicted and do not have the means to appeal through the typical channels, The Court receives ‘thousands of these each year, and every now and then it deems one worthy. The Court appointed an attorney for Gideon to argue this case. His attomey argued that the Fourteenth Amendment's due process clause required states to follow the Sixth ‘Amendment provision. Since this decision in Gideon v. Wainwright, all states must pay for a public defender when a defendant cannot afford one. ‘The Court voted 9:0 for Gideon and ruled that Florida had to provide defense attorneys. toll indigent defendants regardless ofthe severity ofthe crime Reasoning: The Court reasoned that s basic principle ofthe American system of {government s that every defendant should have an equal chance ata fi trial and that without an attorney, a defendant does not have that equal chance. Inthe majority opinion, Justice Black quoted from a number of previous cases that supported the appointment of an attorney for indigent persons and argued thatthe 1942 case of Betts v Brady went against the Court's own precedents. Further, the Court reasoned that there was no logical basis to the distinction between a capital offense, which would allow the appointment ‘of an attorney for an indigent person, and a noncapita offense, which unt the Gideon decision would not have allowed free legal representation to indigent persons. ‘The Court's Majority Opinion by Mr. Justice Hugo Black: n returning to these ld precedents, we ... restore constitutional principles established to achieve a fair system of justice. Not only these precedents, but also reason and reflection, require sto recognize that, in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless ‘counsel is provided for him, This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish ‘machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly there are few defendants charged with crime, few indeed, who fal to hire the best lawyers. they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fir trials in some counties, butts in ours. from the very beginning, our state and national constitutions and laws have laid great ‘emphasis on procedural and substantive safeguards designed to assure fair trials. before impartial tribunals in which every defendant stands equal before the law. This ‘noble ideal cannot be realized ifthe poor man charged with crime has to face his ‘accusers without a lawyer to assist him, TS: DUE PROCESS AND THE RIGHTS OF THE ACCUSED 327Political Science Disciplinary Practices: Explain how the Court's Decision Relates to Political Principles Justice Clark states in his concurring opinion that "there cannot constitutionally be a difference in the quality ofthe process based merely upon a supposed difference inthe sanction involved: With this statement he affirms that ifthe principle of due process applies in one instance it should apply in other instances comparable in important ways. Examine how the Court's decision relates to other principles through the activity below. ‘Apply: Complete the folowing tasks. 1. Explain the principles on which Justice Black’s opinion relies. 2, Explain the relationship between the Sixth and Fourteenth Amendments es they apply to selective incorporation 3. Explain how the decision in this case balances the principles of individual liberties and state powers. REFLECT ON THE ESSENTIAL QUESTION Essential Question: To what extent are states limited by the due process clause fom infringing upon individual rights? On separate paper, complete the chart below. Due Process Cases andLaws How the Case/Law Protects or infringes Upon individual Rights KEY TERMS AND NAMES. exclusionary rule New Jersey [Link] (1985) Fifth Amendment (1781) procedural due process. Fourth Amendment (1781) public safety exception Gideon v, Wainwright (1963) search and seizure ‘Mapp v Ohio (1861) Sixth Amendment (1781) metadata USA FREEDOM Act (2015) Miranda v. Arizona (1968) 328 UNITED STATES GOVEANMENT & POLITICS: AP" EDITION3.9 Amendments: Due Process and the Right to Privacy “The explosive growth in the collection and sale of consumer information enabled by new technology poses unprecedented risks for Americans’ privacy. The government has failed to respond to these new threats.” Senator Ron Wyden (D-O8}, on Consumer Data Protection Act, 2018, Essential Question: To what extent are states limited by the due process clause from infringing upon individuals’ rights to privacy? The framers didft explicitly state that citizens have a “right to privacy” in the Constitution. This idea of a “right to be left alone” or a right to privacy can be pulled from the wording of several amendments. The First Amendment deals with the privacy of one’ thoughts or associations with others, The Third protects the privacy of ones home from the government's no-longer-used practice of mandating that private citizens house soldiers in peacetime. The Fourth protects agains illegal searches, keeping a home or other area (purses, lockers) private. ‘The Fifth entitles an accused defendant to refrain from testifying and thus to keep information private. Also, the Ninth Amendment isa cautionary limit to the power of the federal government in general, which states that the people have rights not specifically listed, such as privacy. Substantive Due Process Substantive due process places substantive limits on what liberties the government can take avway or deprive a citizen of, Ifthe substance of the law. the very point of the law-—violates some basic right, even one not listed in the Constitution, then a court can declare it unconstitutional. State government policies that might violate substantive due process rights must meet some valid state or public interest to promote the police powers of regulating health, welfare, or morals. The right to substantive due process protects people from policies for which no legitimate state interest exists or the state interest fails to override the citizens’ rights, Substantive Due Process Denied These policies became a thorny issue as labor unions and corporations debated the Constitution and while legislatures tried to promote the health and safety AMENDMENTS: DUE PROCESS AND THE RIGHT To PRIVACY 329of citizens. ‘The 1873 Slaughterhouse Cases forced a decision on the privileges or immunities clause of the recently ratified Fourteenth Amendment, The Slaughterhouse Cases were a group of cases relating to the state of Louisiana's consolidation of slaughterhouses into one government-run operation outside of New Orleans, causing butchers in other locations to close up shop and thereby infringing on their right to pursue lawful employment. The majority opinion ruled that the Fourteenth Amendment’ privileges or immunities clause protected only those rights related to national citizenship and did not apply to the states, even though the state law in this case limited the butchers basic right to pursue lawful employment. In a dissenting opinion, Justice Joseph Bradley asserted that “the right of any citizen to follow whatever lawful employment he chooses to adopt ... is one of his most valuable rights and one ‘which the legislature of a State cannot invade,’ so a law that violates such a fandamental, inalienable right cannot be constitutional. The Court majority, however, interpreted the law on a procedural basis rather than addressing the substance of the right involved. In later years, when the Court addressed business regulation in the industrial period, it developed the substantive due process doctrine in relation to state and federal regulations in the workplace. Right to Privacy In the 1960s, a new class of substantive due process suits came to the Court that sought to protect individual rights, especially those of privacy and lifestyle. In Griswold v. Connecticut (1965), the Court ruled an old anti-birth control state statute in violation of the Constitution. The overturned law had barred ‘married couples from even receiving birth control literature. The Court for the first time emphasized an inherent right to privacy that, although not expressly mentioned in the Bill of Rights, could be found in the penumbras (shadows) of the First, Third, Fourth, and Ninth Amendments. ‘Ihe Court further bolstered the right to privacy in the Roe v. Wade (1973) decision, Primarily addressing the question of whether Texas or other states could prevent a woman from aborting her fetus, the decision rested on a substantive due process right against such a law. Whether a pregnant woman was to have or abort her baby vwas a private decision between her and her doctor and outside the reach of the government. These two cases together revived the substantive due process doctrine first laid down a century earlier. MUST-KNOW SUPREME COURT CASE: ROE V. WADE (1973) ‘The Constitutional Question Before the Court: Does Texas's anti-abortion statute violate the due process clause of the Fourteenth Amendment and a woman's, constitutional right to an abortion? Decision: Yes, for Roe, 7:2 Facts: In 1971, when Texas resident Norma McCorvey, a single circus worker, became pregnant forthe thd time at age 21, she sought an abortion, States had developed 330 UNITED STATES GOVEANMENT & POLITICS: AP" EDITIONanti-abortion laws since the early 1900s, and this case reached the Court as the national debate about morality, responsibilty, freedom, and women’ rights had peaked. At the time, only four states allowed abortions as in this case, and Texas was not one of them (Texas did allow abortions in cases when the mother's life was at stake). With Attomey Sarah Weddington of the American Civil Liberties Union (ACLU), MeCorvey filed suit against local District Attorney Henry Wade, To protect her identity ‘the Court dubbed the plaintiff “Jane Roe" and the case became known as Roe v. Wade. Reasoning: The legal principle on which the case rests was new and somewhat revolutionary, Weddington and her team argued that Texas had violated Roe's “ight to privacy” and that it was not the government's decision to determine a pregnant woman's medical decision, Though there is ne expressed right to privacy in the Constitution, the Court had decided in Griswold v. Connecticut in 1985 thatthe right to privacy was present in the penumbras ofthe Bill of Rights. Meanwhile, the state stood by its legal authority to regulate health, morals, and welfare under the police powers doctrine, while much of the public argued the procedure violated a moral code, Roe relied largely on the Fourteenth Amendment's due process clause, arguing that the state violated her broadly understood liberty by denying the abortion, However, the ‘majority opinion recognized thatthe "potentiality of human life” represented by the Lunborn child is also of interest to the state. ‘The Court's Majority Opinion by Mr. Justice Harry Blackmun, with which ices Douglas, Brennan, Stewart, Marshall, Powell, and Chief Justice Burger tate criminal abortion laws; like those involved here... violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. ‘Though the State cannot override that righ, it has legitimate interests in protecting both the pregnant woman's healthand the potentiality of human life, each of which Interests grows and reaches a “compelling” point at various stages of the woman's approach to term (2) For the stage prior to approximately the end of the first trimester, the abortion decision and ts effectuation must be left to the medical judgment ofthe pregnant woman's attending physician. (b) For the stage subsequent to approximately the end of the fist trimester, the ‘State, in promoting its interest inthe health of the mother, may, fit chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. () Forthe stage subsequent o viability the State, in promotingitsinterest inthe potentiality of human life, mayfitchooses, regulate, and even proscribe, abortion except wherenecessary in appropriate medical judgment, for the preservation of the lite or health ofthe mother. Justice Stewart wrote @ concurring opinion that stressed the foundational role of substantive due process and the Fourteenth Amendment in arriving at the majority ‘pinion, arguing that the liberty to which the Fourteenth Amendment refers must be understood broadly In dissenting opinions, Justice Rehnquist raised a technical question about the legal standing of the case, questioning whether Roe, who already gave birth to her baby (and had given the baby up for adoption), could file a compiaint on behalf of others who might find themselves in her position. He wrote that plaintiffs ‘may not seek AMENDMENTS: DUE PROCESS AND THE RIGHT TO PRIVACY 331vvindications fr the rights of others" Justice White addressed substantial disagreement with the interpretation of the majority Since Roe: The Court has addressed a series of cases on abortion since foe and the abortion issue inevitably comes up at election time and during Supreme Court ‘nominees’ confirmation hearings. In Planned Parenthood v. Casey, the Court outlawed a Pennsylvania law designed to discourage women from getting an abortion or expose abortion patients via public records. It also did not uphold the "informed consent" portion of the aw that required the aborting woman (mother), married or unmarried, to inform and secure consent from the father. However, the Casey decision did uphold such state requirements as a waiting period, providing information on abortion alternatives, and requiring parental (or judge's) consent for pregnant teens. Political Science Disciplinary Practices: Explain the Court's Reasoning ‘The Ae case against the Texas law forbidding abortion came to the Supreme Court on appeal ater 8 decision by the United States District Court for the Northern District of ‘Texas. That decision struck down the Texas law on the basis of the Ninth Amendment, relying in part on the decision in Griswold. The Supreme Court, however, based its decision on the due process clause of the Fourteenth Amendment, reinforcing substantive due process. ‘Apply: Complete the following tasks 1. Analyze the wording in the due process clause of the Fourteenth Amendment that supports the privacy right of a woman to decide whether or not to carry her Unborn child to term. (See Topic 37 for the Fourteenth Amendment.) Explain your answer. 2. Explain how the Court distinguished different legal standards throughout a woman's pregnancy. 4. Explain the competing interests the Court had to consider and how it balanced those interests. 4, Explain the issues related to federalism in this decision 5. Explain the similarities and differences in the Roe and Planned Parenthood rulings. Roe and Later Abortion Rulings Before 1973, abortion on demand was legal in only four states. The Roe decision made it unconstitutional for a state to ban abortion for a woman during the first trimester, the first three months of her pregnancy. An array of other state regulations developed in response. States passed statutes to prevent abortion at state-funded hospitals and clinics. ‘They adjusted their laws to prevent late-term abortions. In 1976, Congress passed the Hyde Amendment (named for Ilinois Congressman Henry Hyde) to prevent federal funding that might contribute to an abortion. ‘THINK AS A POLITICAL SCIENTIST: DESCRIBE THE REASONING OF A REQUIRED SUPREME COURT CASE ‘When more than half of the justices of the Supreme Court agree on a ruling, it constitutes a majority decision. The most sentor justice voting in the majority 332 _ UNITED STATES GOVERNMENT & POLITICS: AP" EDITION{always the chief justice if he or she isin the majority) will pick who writes the majority opinion, or explanation of the ruling, The excerpt below is from Roe . Wade, Justice Blackmun justified the decision of the Court in his majority opinion, Practice: Read the passage and answer the questions below. *...The Constitution does not explicitly mention any right of privacy...{T]he Court hhas recognized that aright of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution, ... This right of privacy, whether itbe founded in the 14th Amendment's concept of personal liberty and restrictions. upon state action, as we feel itis, or as the District Court determined, in the Ninth ‘Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the ‘State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy ‘may be involved, Maternity, or additional offspring, may force upon the woman a distressful fe and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, forall concerned, associated with the unwanted child, and there isthe problem of bringing a child into 2 family already unable, psychologically and otherwise, to care for it. In other cases, asin this one, the additional difficulties and continuing stigma of unwed motherhood ‘may be involved, All these are factors the woman and her responsible physician necessarily will consider in consultation” 1. How does Justice Blackmun use the Ninth Amendment to explain the ruling? 2, What additional reasoning does Justice Blackmun use to support the ruling of the case? REFLECT ON THE ESSENTIAL QUESTION Essential Question: To what extent are states limited by the due process clause from infringing upon individuals’ rights to privacy? On separate paper, complete the chart below. Fight to Privacy Cases andLaws How the Case/Law Protects or infringes Upon Privacy Rights KEY TERMS AND NAMES Griswald v. Connecticut (1965) Foo v. Wado (1873) Hyde Amendment (1976) substantive due process tight to privacy AMENDMENTS: DUE PROCESS AND THE RIGHT TO PRIVACY 333