School Improvement in Maryland
Clarifications: Each clarification provides an explanation of an indicator/objective to help teachers better understand the skills and/or concepts.

Standard 1.0 Political Science

Topic C. Protecting Rights and Maintaining Order

Indicator 3. Examine the principle of due process

Objective a. Identify how due process of law protects individuals

Clarification

Due process of law is the right of citizens to be protected against arbitrary action by the government. Due process is applied both procedurally and substantively. This means that prior to taking away a person’s rights to life, liberty, or property, the government must not only follow fair procedures, but it also must have sufficient justification for taking away these rights.

The term procedural due process refers to the Constitution’s requirements that government officials must follow established procedures, and must do so fairly, when applying and enforcing the law. Although it is most commonly thought of as relating to protections enjoyed by individuals who have been accused or suspected of committing crimes, in the United States procedural due process also applies to noncriminal (civil) matters. For example, government officials must follow the established procedure of providing just compensation to property owners when they acquire real estate for public purposes such as constructing roads or public buildings.

Procedural due process is an essential component of maintaining fairness in the U.S.’s adversarial system of criminal justice. In this system, criminal defendants are presumed to be innocent until government prosecutors prove them to be guilty beyond a reasonable doubt. During the criminal process, opposing parties are responsible for gathering and presenting evidence and witnesses to support their side and to expose weaknesses in the other side’s case. Both parties – prosecution and defense – seek to persuade a neutral, impartial decision maker – a judge or a jury – that they should prevail. Guarantees of procedural due process ensure that this “fight” is fair, so that both the interests of the people as a whole and the rights of the accused individuals are respected. Because of this, U.S. defense lawyers routinely represent criminal defendants whom they suspect, believe, or even know to be guilty to preserve the integrity of this system.

The term substantive due process refers to the Constitution’s requirement that the content of laws that legislatures pass must be fair and reasonable. In other words, Congress and state legislatures cannot pass laws that place unfair or unreasonable limitations on people’s rights to life, liberty, or property, no matter how popular such laws might be with government officials or even the people. The idea of substantive due process is based on the notion that some individual rights are so fundamental that government must have a “compelling” reason to regulate or interfere with them. It is the role of the courts, interpreting the Constitution, to determine whether a law is unconstitutional because it violates a fundamental right, and whether a governmental regulation of a fundamental right is justified by a compelling government interest. Over the course of U.S. history, the Supreme Court has identified several fundamental rights, some of which are not listed in the Constitution or the Bill of Rights. These include the right to marry and have children; to purchase and use birth control; to have custody of one’s one children and raise them as one sees fit; to refuse medical treatment; to free speech; to interstate travel; to vote; to associate; and to religious freedom.

While it is not necessary to explicitly teach 8th graders the difference between procedural and substantive due process, it is important that students recognize that due process requires that the government act fairly both in terms of the procedures it follows and the laws and/or regulations it passes.

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Resources for Objective 1.C.3.a:
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