One of the great fears of the founders and framers was the tendency of powerful governments to act unfairly and unreasonably. The due process clause in the Fifth Amendment was intended by the framers to prevent such abuse of power on the part of the federal government.
The due process clause in the Fourteenth Amendment protects against state of local government abuse of power. This clause has been interpreted by the courts to extend most of the rights in the Bill of Rights, that originally applied only to the federal government, to protect people against unfair actions by state and local governments.
Students first read about what due process means. Then they are involved in a problem-solving activity that raises questions about who should have the right to a lawyer in a criminal case. The lesson ends with a discussion of the importance of the right to due process in criminal proceedings, as well as a discussion of other situations in which the right to due process applies.
At the conclusion of the lesson:
- Students should be able to state in general terms what due process means.
- Students should be able to explain the importance of the due process clauses in the Bill of Rights (Fifth Amendment) and in the Fourteenth Amendment.
- Students should be able to identify situations in which due process rights are important, particularly the right to a lawyer in criminal proceedings.
Ask students to read the paragraphs below. Go over with them the location of the two due process clauses and the meaning of the phrase. In this lesson we will look at important words in the Constitution that are about fairness. These words are in the due process clauses of the Constitution. We will see how these clauses help protect our lives, liberty, and property from unfair and unreasonable acts by our government.
What Is Due Process Of Law?
The right to due process is the right to be treated fairly by your government. You will find the words due process in two places in our Constitution. They are in both the Fifth Amendment and the Fourteenth Amendment. Fifth Amendment. It says that no person shall be deprived of life, liberty, or property without due process of law. This amendment protects your right to be treated fairly by the federal government.
Fourteenth Amendment. This amendment says that state governments cannot deprive you of your life, liberty, or property without due process of law. It protects your right to be treated fairly by your state and local governments. Most people don't know that before the Fourteenth Amendment was passed, the Bill of Rights only protected you from unfair treatment by the federal government. The Fourteenth Amendment has been used to protect you from unfair treatment by state and local governments. Due process means that members of your government must use fair methods or procedures when doing their jobs. They must use fair procedures when they make decisions. They must use fair procedures when they enforce the law.
For example, the Bill of Rights says that if you are accused of a crime, you have the right to have a lawyer help defend you. Suppose the government did not allow you to have a lawyer. The government would have violated your right to due process that is guaranteed by the Constitution.
What does the right to have a lawyer in a criminal case mean? Does it mean the government must pay for a lawyer to help you if you cannot afford to pay for one yourself? The Supreme Court has changed its ideas about this right over a period of years. In 1963, in a famous case, the Supreme Court thought again about what the constitutional right to a lawyer means.
Problem Solving: Determining Who Has the Right to a Lawyer
Form groups of 3-5 students and assign them the task of reading the problem-solving activity in the box and answering the questions that follow. You might have students write their answers on chart paper and share their opinions with the rest of the class. NOTE: In the case of Gideon v. Wainwright, 372 U. S. 335 (1963), the Supreme Court overruled its decision in a case decided 20 years earlier, and held that a state must provide counsel for an indigent accused of a serious crime. This case is an example of how ideas as to what constitutes due process, or fundamental fairness, can change over time.
Reading and Discussion: Understanding the Importance of Due Process
Ask pairs of students to read the sections below entitled, "Why Is Due Process Important in Criminal Trials?" and "Other Examples of Due Process Rights." They should discuss and answer the questions that follow each section. Also ask them to write down examples of rights to due process that would be important to school children.
Why is Due Process Important in Criminal Trials?
To get some idea of the importance of fair procedures in enforcing the law, read the following situations. Then answer the questions that follow them. Suppose you lived in a country in which the following things could happen.
- If the police suspected you of a crime, they could force you by any means to give them information that might show you were guilty.
- If you were taken to court, the judge could use any means to get information from you to decide whether you were guilty.
- The leaders of the country could make decisions about your life, liberty, or property in secret, without allowing you or anyone else to participate.
- Would you believe that you would be treated fairly if you were accused of a crime? Why or why not?
- Even if you haven't broken the law or been arrested, would you want other people suspected of crimes treated in these ways? Why or why not?
- Would you want decisions that affected your life, liberty, or property made in secret? Why or why not?
Other Examples Of Due Process Rights
Due process means the right to be treated fairly by all agencies of your government. Your right to due process is not limited to making sure you are treated fairly by law enforcement agencies and the courts. The government must treat you fairly whenever it creates laws about your right to travel, raise a family, or use your property. It must also be fair if you apply for a government job or receive government benefits. The right to due process means the right to be treated fairly in all your dealings with your government.
Concluding Activity: Reviewing and Using the Lesson
Have the students answer the questions below.
- Why is the guarantee of due process so important? Give examples to support your position.
- Look at the Bill of Rights. Find parts of it that are designed to make sure you are treated fairly by your government. Be prepared to explain what you have found to your class.
- Explain these terms: due process, procedures, cross-examine, testify.
For reinforcement, extended learning and enrichment:
- Point out that the public gets much of its information about due process from television programs. Have students watch some currently popular television series about police work, taking notes on procedures followed. Ask the students what they would have done in the situations portrayed. What actions by the police officers were fair or unfair? Then invite a police officer to visit the class and analyze the accuracy of the information conveyed on television.
- Arrange to have the class visit and observe procedures at a local court hearing. If possible, have the judge discuss procedures with students.
- A handout has been included to extend students' knowledge of specific rights included in the Bill of Rights which are applicable to state actions under the due process clause of the Fourteenth Amendment. Distribute Handout: What Rights Do People Have...? and allow time for students to complete the worksheet.
This lesson was adapted from "We the People…Level 1." Copyright 1988, Center for Civic Education. Reproduced with permission.