Hello, everyone.
Welcome to our next session on individual liberties.
If you recall in our last session, we decided that
we would be asking four big questions here, in due process.
Those four questions, I have up on the slide again.
What are fundamental rights?
Why does it matter?
How does the government regulate a fundamental right?
And what about other rights?
Well, in this session, we're going to focus on, what are fundamental rights.
Fundamental rights are those rights that are the
most important in a democracy that values liberty.
Individual liberty.
And liberty, of course in the United
States, and especially in our Constitution is
a very important word, as you will see as we go through the materials.
Where are these fundamental rights to be found in the U.S. Constitution?
Well, if you look at your Constitution, you will
see that the first ten amendments to the Constitution.
Are what we call the Bill of Rights.
And sometimes I'll abbreviate that BOR, just so you know.
And let's look a little bit at what some of
the fundamental rights are that are in the Bill of Rights.
In the first amendment, you will see that we
have a right to free speech and freedom of religion.
In the Second Amendment.
We have the right to bear arms.
In the Fourth Amendment we have the right
to be free from unreasonable searches and seizures.
And in the Fifth Amendment we have the right not to incriminate yourself.
The Sixth Amendment protects the right to counsel.
And our eight amendment protects the right
to be free from cruel and unusual punishment.
These Bill of Rights, of course, lay out
explicit fundamental rights that we have in the United
States, but we also have implied fundamental rights, which
we will talk about in more detail later on.
But let me give you a couple of examples.
One example, for example, we have a right of privacy.
It's not explicitly in the Bill of Rights.
But the court has said that that's one of our fundamental rights.
We also have a right to marry in the United States.
That is a fundamental right.
And we'll talk about that in more detail later on.
So just to summarize then fundamental rights are those rights
that are the most important in a democracy that values liberty.
They include the rights in the Bill of Rights, and they include
rights that are implied that the Supreme Court has said are fundamental rights.
And we will get there.
Trust me.
You might want to know and I think it will be helpful for
you to know that we have two levels of government in the United States.
We have the federal government and then
each state also has its own state government.
With respect to individual liberties.
Both levels of government are held to the same standards.
But prior to the Civil War, the federal state relationship of
the United States was very different from what it is now.
So what was it prior to the Civil War?
Well as you probably all know, in the
United States, we allowed slavery before the Civil War.
People feared that the federal government, might
become too strong compared to the state governments.
So with respect to where the people are going to put their trust, the
people were going to put their trust
in the state government, not the federal government.
Well very early on in 1833, the Supreme Court decided a case called Barron v.
Baltimore.
And there's no reason you should know this case.
But you might come across it.
But in this situation.
We had an owner of a wharf.
Whose wharf was damaged when the city of
Baltimore, according to the owner of the wharf.
Failed to maintain the waterways and diverted
streams such that his wharf was damaged.
Well he wanted to sue the city of Baltimore for the damage to his wharf.
And he thought that he had a right to be
compensated for that under the Fifth Amendment due process clause.
But this case is important to us, because the Supreme Court said, oh, those Bill of
Rights, those fundamental rights, only apply to limit the Federal government.
Those Bill of Rights do not apply to limit state and local governments.
No, no, no.
So the Bill of Rights didn't apply to
the states because the people trusted their states.
Following the Civil War, of course, the trust relationship
the people had with their governments kind of flipped.
Where as before the people trusted their state governments.
Following the Civil War the people trusted the
Federal Government and not their state government so much.
This was especially true as you can imagine with the newly freed slaves.
So after the Civil War then in the United States our
constitution was amended and we added what are called the Reconstruction Amendments.
This was our effort after the Civil War
to kind of rebuild ourselves as a United States.
The 13th Amendment, if you look at it, you will see it abolishes slavery.
No one can own another person in the United States.
[SOUND] The 15th Amendment, guarantees the
right to vote free from race discrimination.
So voting is a fundamental right.
[COUGH].
The Reconstruction Amendments, of course, also include
the 14th Amendment, which is our focus.
The 14th Amendment has four clauses.
The first clause is what we call the Citizenship Clause and
that made the newly freed slaves citizens of the United States.
States.
The second clause is the privileges and immunities clause and we will skip that.
It's beyond really the scope of this introduction.
Our focus will be on the due process clause of the fourteenth amendment.
And I put up here the relevant part of that.
It says no state shall deprive any person of life.
Liberty, and there I put it in capital letters
for us, or property without due process of law.
Now this same limit is in the 5th Amendment.
The Amendment that protects people from the federal government.
Due process, of course, can have two different meanings.
On the one hand, it can mean procedural due process.
And, in fact, when the Supreme Court first interpreted this clause
in the 14th Amendment it said that's what due process means.
Due process means procedural due process so that the government has to give someone
notice and an opportunity to be heard before it does what it's going to do.
How much notice?
Well, the court has said, well we balance a few factors.
What is the importance of the interest to the person?
Not surprisingly, the more important the interest, the
more notice will be required under the law.
We ask, will greater procedural safeguards produce greater accuracy in the outcome?
And then we ask, well how much of a burden will
giving notice in an opportunity to be heard place on the government.
The greater the burden, then perhaps the less notice is required.
So think about, okay, if you were a parent about to lose
your children because the state says you are neglecting or abusing them.
That would require much more procedural due process than,
let's say, you were about to lose your car.
Okay?
Those interests are very different in what might happen or
what the procedural due process might require is very different.
Now guess what?
That's all we're going to to do with procedural due process
because we have a lot to do under substantive due process.
This is the second meaning of the due process clause of the 14th amendment.
Substantive due process is about the government offering a justification
for denying individuals of their life, liberty, or property.
So it's one thing for the government to say,
hey, I'm going to come and take your children.
Procedural due process.
And quite another for the government to say why they're taking your children.
And have to justify why.
They are going to be doing that.
That's what substantive due process is about and that's what we'll focus on.
Substantive due process, then, it comes from
the same clause in the 14th amendment.
"---[no state shall] deprive any person of life,.
Liberty or property without due process of law.
Liberty means, okay, and this very interesting, liberty means most of
those rights in the Bill of Rights, it's what we call the Incorporation Doctrine.
The Supreme Court, through a series of cases that we won't get into.
Decided that, wow, you know, states should have
to respect an individual's right to free speech,
freedom of religion, the right to be free
from unreasonable searches and seizures and so forth.
So with a few exceptions, most of those
Bill of Rights, in the first ten amendments, right.
Apply to limit the state government, as well.
We will also learn that some of the implied
rights that we have, like, the right of privacy.
Also comes from the court's interpretation of
that word, liberty, in the 14th amendment.
So, the rights in Bill of Rights and implied rights are fundamental rights.
Fundamental rights are those rights that are the
most important rights in a democracy that values liberty.
Next time we will ask, why does it matter?
See you soon.
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