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 b. Describe the due process protections in the Bill of Rights and the 14th Amendment

Clarification

The constitutional meaning of due process has changed dramatically since ratification of the Bill of Rights in 1791. In the earliest days of the republic, American political leaders were generally suspicious of the power of the federal government and trusting of the states, many of whom had previously drafted their own bills of rights. Therefore, as with each of the other protections found in the first ten amendments to the Constitution, the Fifth Amendment’s due process clause, which declares that “no person … shall be deprived of life, liberty, or property, without due process of law,” was intended to protect Americans from the power of the federal government.

In the months following the Civil War, however, former Confederate officials assumed control over southern state governments and instituted laws known as “Black Codes” that had the intent of effectively returning African Americans to slave status. At this time it became apparent that not all state governments in the United States interpreted their bills of rights to ensure due process and protect the fundamental rights of everyone within their boundaries. Therefore, the 14th Amendment to the Constitution, ratified in 1868, prohibited State governments from depriving “any person of liberty, or property, without due process of law,” and gave to Congress the power to enforce this prohibition with appropriate legislation. Ratification of the 14th Amendment thus marked the first dramatic change in the meaning of due process in the United States: the universal requirement that states as well as the federal government were obliged to observe its limitations.

Starting in 1925, in the Gitlow v. New York case, the Supreme Court began to examine the due process clause of the Fourteenth Amendment with an eye to identifying the rights in the Bill of Rights that the states, like the national government, must protect. In its Gitlow decision, the Court recognized that the First Amendment’s rights of free speech and free press are among the personal rights to liberty protected by the due process clause. Thus began a process known as incorporation – using the due process clause of the Fourteenth Amendment to decide whether various guarantees in the Bill of Rights limit the power of states as well as the national government.

In the decades since the Gitlow ruling, on a case-by-case basis the Supreme Court has determined that many protections found in the Bill of Rights apply to state governments. These include all of the rights found in the First Amendment, as well as criminal procedural guarantees found in Amendments Four through Eight. Most recently, in its 2010 ruling in McDonald v. Chicago, the Court declared the 2nd Amendment’s protection of the right to bear arms applicable to states through the 14th Amendment.

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Resources for Objective 1.C.3.b:
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