The Constitution's 14th Amendment

In this post, I will explain the fourteenth amendent and its role in due process rights.

In fact,

Due process rights had already existed on the federal level when the fourteenth amendment was ratified but was for the first time extended to the state level.

Lets get started….

The amendment has 5 sections with the first section containing language pertinent to due process rights.

It reads:

Section 1: All persons naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
14th Amendment U.S. Constitution

This section bestowed the rights of citizenship on anyone born in the U.S., except for Native Americans who were not bestowed citizenship until passage of the Indian Citizenship Act of 1924, nor to women until ratification of the 19^th Amendment in 1920.

This section also ended the constraints of the infamous ruling in Dred Scott v. Sanford, 60 U.S 393 (1856) where Justice Roger Taney stated that persons of color lacked standing to sue for their rights in federal court and were considered non-citizens and not entitled to any protection from the courts or the federal government.

Before the 14^th Amendment was ratified and for years afterward, the Bill of Rights, usually associated with the first 10 amendments to the Constitution, was held to only apply to federal rights so that the various procedural and substantive due process rights embodied in amendments such as the 1^st, 4^th, 5^th, and 6^th, now recognized as so fundamental to fair and unbiased criminal proceedings, could not be enforced against the states.

In fact, in Barron v. Baltimore, 7 Pet. 243 (1833), the Supreme Court explicitly ruled that the Bill of Rights did not apply to the individual states.

Although the language of the 14^th Amendment mandated that the courts enforce certain rights including that of due process, the courts were reluctant for many years after its ratification to take any action that might define or protect the rights of minorities or to make any decision that seemingly overruled Barron.

It was not until the early 20^th century that certain groups began to demand protection and that they be afforded due process so that constitutionally mandated procedural rights could be recognized as applying to the states and that they be enforced.

The courts could only achieve this by employing the doctrine of incorporation found in the due process clause of the 14^th Amendment so that these amendments would now be applicable to the states as well.

What Rights are Protected Under the Due Process Clause of the 14^th Amendment?

1^st Amendment

The 1^st Amendment right to freedom of expression may seem obviously fundamental and essential to the concept of ordered liberty but it was not until Gitlow v. New York, 268 U.S. 652 (1925) that the court ruled that its provisions and protections applied to the states through the due process clause of the 14^th Amendment.

There are numerous 1^st Amendment decisions that attempted to define and to outlaw certain expressions, even though the language of the 1^st Amendment states that “Congress shall make no law abridging the freedom of speech.”

A decision in an early and famous 1^st Amendment case was drafted by Justice Oliver in Schenk v. United States, 249 U.S. 47 (1919) who upheld the criminal conviction of defendants under the Espionage Act by their having protested the military draft.

Holmes wrote that although certain expressions used by the defendants might be constitutional in some cases, their words apparently exhorting men of draft age to resist the draft created a “clear and present danger.”

It was not until the case of Brandenburg v. Ohio, 395 U.S. 444 (1969) that Schenk was partially overturned and the court began to use the new standard for deciding whether certain inflammatory language was unprotected speech if it was “…directed to inciting or producing imminent lawless action likely to incite or produce such action…”

Arguably, the Gitlow case should have led to protections for those jailed for expressing dissent against the military draft or for any other dissent against government policies including being a member of the Communist party.

However, Congress felt that membership in the party posed a dire security threat to the American way of life and passed the Communist Control Act of 1954 that outlawed the Communist Party, though the law seems to fly in the face of protected political expression.

It was not until Communist Party v. Catherwood, 367 U.S. 389 (1961) when the court ruled that New York could not keep party members from the state’s worker’s compensation system that it would appear that this Act was all but overruled. Later, a federal district court in Arizona ruled that the Act was unconstitutional and that the state could not exclude the party from the state’s ballot.¹

Still, a number of states have retained some form of loyalty oaths for government employees including California. Washington State still requires that none of its employees be members of the Communist Party.

4^th Amendment

The 4^th Amendment to the Constitution protects citizens from unlawful searches and seizures. It requires that a warrant be issued before a government authority such as the police conduct a search although there are numerous exceptions to the warrant requirement.

Should a search be deemed unlawful, any evidence seized must be excluded from any criminal trial against a person from whom the property was seized.

It was not until 1914 in Weeks v. United States, 232 U.S. 383 (1914) that the exclusionary rule was adopted in federal cases that barred use of such evidence at trial unless it could have been inevitably discovered by legal means.

For the 4^th Amendment’s ban on use of illegally seized evidence to apply to the states, Mapp v. Ohio, 367 U.S. 643 (1961) applied the exclusionary rule to state and local criminal prosecutions.

5^th Amendment

Under the 5^th Amendment, a person cannot be compelled to be a witness against herself, also defined as the right against self-incrimination.

You may refuse to answer any questions that you feel may tend to incriminate you or where you could be or were involved in possible criminal activity. Your refusal to testify as a defendant in a criminal trial may not be presumed by a jury to be an inference of guilt.

There is also the Double Jeopardy Clause of the 5th Amendment whereby you cannot be tried more than once for the same offense although if tried and acquitted in state court, a federal court under the doctrine of dual sovereignty may try you. When this amendment was ratified in 1791, it applied to all states though its protections were enhanced by passage of the 14^th Amendment and its own due process clause.

6^th Amendment

Another essential right afforded criminal defendants is found in the 6^th Amendment that guarantees your right to assistance of counsel among other procedural due process rights.

It can be argued that this right was officially recognized as being applicable to the states in the case of Herbert v. Louisiana, 272 U.S. 312 (1926) where the court stated that any state action be…”consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”

However, it was not until the Scottsboro trial in 1932 when the courts began to recognize that “fundamental fairness” under the due process under the 14^th Amendment could not be denied to criminal defendants as it was in this case by the actions of the state of Alabama. In Powell v. Alabama, 287 U.S. 45 (1932), the court ruled that although the Scottsboro defendants had had appointed counsel, their representation was so poor and ineffective that they may as well have been unrepresented. In this case, the Supreme Court ruled that in capital cases all state courts were obligated under the 14^th Amendment to appoint counsel and that representation be effective assistance of counsel. Further, the court ruled that the Scottsboro defendants were denied equal protection of the laws guaranteed under the due process clause of the 14^th Amendment when the state intentionally excluded African Americans from the jury, citing this as another violation of the defendants’ right to a fair trial under the 6^th Amendment.

Due process rights guaranteed under the 6^th Amendment include:

Right to assistance of counsel
Right to a speedy trial²
Right to a public trial
Right to an unbiased judge and jury³
Right to full notice of the charges
Right to cross-examine the state’s witnesses and to subpoenas to compel witnesses to testify
Right to all exculpatory evidence possessed by the state⁴
Right to appeal

Perhaps the most well-known case for enforcing due process rights afforded criminal defendants is that of Miranda v. Arizona, 383 U.S. 436 (1966), which actually addressed four separate cases all involving confessions extricated from defendants while in custody.

In its ruling, the court ruled that in-custody interrogation must be preceded by certain warnings that include:

Your right to remain silent
Any statements made by you can and will be used against you in a court of law
That you have the right to counsel
That if you cannot afford private counsel, the court will appoint one for you

You may assert your right to remain silent and to confer with an attorney at any time during questioning and the police must immediately refrain from questioning you further. Any confession or statements extracted in violation of Miranda may not be used against the defendant.

8^th Amendment

Although short in content, this amendment addresses procedural due process concerns including excessive bail and fines and cruel and unusual punishment. A defendant in custody may have bail imposed to guarantee their appearance at all future proceedings but it may not be excessive.

If you are arrested and charged with simple assault, the court cannot impose bail of $1,000,000 for example since that amount is unreasonably necessary to ensure your appearances⁵.

Also, you have the right to an adversary hearing before the court may deny you bail.

Cruel and Unusual Punishment

Another due process aspect of the 8^th Amendment is the prohibition on cruel and unusual punishment.

The punishment must not be out of proportion to the crime committed nor cause undue suffering. Most cases addressing the 8^th Amendment concern capital cases. In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court struck down the death penalty as cruel and unusual punishment because it was imposed in a discriminatory, inconsistent or random manner and thus a violation of a person’s due process rights. This effectively stopped all death penalty cases and reduced them to life imprisonment. The death penalty was resumed in 1976, however, in Gregg v. Georgia, 428 U.S. 153 (1976).

The court has addressed due process concerns with the death penalty in matters where a jury deciding whether to impose the death penalty or life without parole may not have had enough discretion in making its decision.

The Fourteenth Amendment and Due Process