Introduction According to the Fifth and Fourteenth Amendments of the United States Constitution, the government is not allow to take away any individual’s life, liberty or property without a fair due process of law. Within the due process we can find the substantive and procedural process (Wasserman, 2004). The substantive put limits on the government actions such as interfering with certain personal basic interest. However, the procedural process protects the accused individual’s rights by ensuring that such person has the opportunity to be heard, and get a fair trial.
Procedural vs. Substantive Due Process Due process is a legal obligation that the state should adhere to the legal rights which are normally owned by the individuals who may be facing criminal or civil dealings. In every due process is very essential to one always questions whether the government has denied one party’s life, freedom, or property as they pursue their pleasure. The due process does integrate certain protections which consist of bill of rights such as the right to
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The state should always observe them in ensuring that an individual faces a fair and impartial trial which they have been accused of. The procedural due process is concerned with verifying that the law was applicable and convincing. Also involves the arrest and examination of the charges brought forward.
References
Pressman, R., & Weinstein, S. (1990). Procedural Due Process Right in Students discipline. Cambridge , Massachusetts: Center for Law and Education.
Strong, F. (1986). Substatntive Due process of law: A Dichotomy of sense and Nonsense. Durham: Carolina Academic Press.
Wasserman, R. (2004). Procedural Due Process: A Reference guide to the United States Constitution. Wesport:
(1) Based on case law from Kent v. United States, 383 U.S. 541, the Supreme Court held that the essentials of due process must be followed. The first holding given by the Supreme Court involved the indirect issue of due process. The Supreme Court held that in juvenile court proceedings the juvenile must be treated fairly and be given the essentials of due process.
The U.S Constitution came up with exclusive amendments in order to promote rights for its citizens. One of them is the Fourth amendment. The Fourth Amendment highlights the right of people to be secure in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searches, and persons or things to be seized (Worral, 2012). In other words such amendment gave significance to two legal concepts the prohibition of unreasonable searches and seizures and the obligation to provide probable cause to issue a warrant. This leads to the introduction of the landmark Supreme Court case Mapp v. Ohio and the connection to a fact pattern (similar case). Both cases will be analyzed showing the importance of facts and arguments regarding the exclusionary rule and the poisonous doctrine.
The Constitution guarantees that no person shall be deprived of life, liberty, or property without being taken to court for a fair trial, but that means nothing if the people are not willing to uphold it (Fifth Amendment).
Attempt by Congress to strike a balance between society's need for protection from crime and accused right to adequate proce...
Kanovitz, J. R. (2010). Constitutional Law (12th ed.). (E. R. Ebben, Ed.) New Providence, NJ, U.S.A.: Matthew Bender & Company, Inc., LexisNexis Gorup.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” –U.S. Constitutional Amendments
SDP is based on the due process clause in the 5th and 14th amendments. SDP is a constitutional safeguard limiting the power of the state, irrespective of how fair the safeguards procedures may substantive limit the power of the state. (Griswold) For someone to bring a SDP issue there has to be a state action that prohibits or burdens a person’s liberty. If the issue is something that is based on traditional notions or the text of the Constitution the issue will be analyzed with strict scrutiny because it is a fundamental right and issues that are more modern are analyzed by rational basis. (Palko) Fundamental rights that received higher scrutiny are those that our Constitution protects such as marriage, family, and privacy. (Griswold) Modern issues of liberty, which are not traditionally rooted in our society, are evaluated at a lower level such as assisted suicide and adultery. (Glucksberg, Michael H. v. Gerald D.)
From the moment an innocent individual enters the criminal justice system they are pressured by law enforcement whose main objective is to obtain a conviction. Some police interrogation tactics have been characterized as explicit violations of the suspect’s right to due process (Campbell and Denov 2004). However, this is just the beginning. Additional forms of suffering under police custody include assaults,
A V Dicey, Introduction to the Study of the Law of the Constitution (10th ed 1964) 40.
The steps to due process, is that before a student can be suspended from school because of a wrongdoing; they must be given the right to an informal hearing that discusses the accusations and evidence against them which resulted in a disciplinary suspension. Moreover, if a student is facing expulsion the student is entitled to a formal hearing before a neutral body, and the student may have a lawyer and who can cross examine witnesses. Furthermore, students facing these disciplinary actions have a right to remain silent, and do not have to answer any questions without an attorney.
The law of due process simply mean educators accused of something have protection. The protection should be fair and reasonable to balance social concern such as government affair and criminal behavior. The employee rights originated from state and federal constitutional provisions, statues, and regulations. The Civil Rights Act of 1964 protects educators employed in private or public schools (Oliva, 2009). In addition, the equal protection clause of the Fourteenth Amendment protects educators from discrimination; amended in 1972 to include educational institutions (Dhanoa and Kleiner, 2000). The response to the discussion question is to identify and examine components essential to due process documentation, protocol, and procedures.
According to the U.S. constitution, fundamental rights hold a special significance under the Fifth and Fourteenth amendments. The Fourteenth amendment states that, “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 ju...
Smith, C. E. (2004). Public defenders. In T. Hall, U.S. Legal System (pp. 567-572-). [Ebscohost]. Retrieved from http://web.ebscohost.com/ehost/ebookviewer/ebook
Such as police officers, judges, law creators, the congress and so forth. Another similarity that due process and the rule of law have in common is that they both have two categories of context explaining two different sides of the spectrum of each procedure needed in the justice system. The rule of law and due process are very crucial functions of justice. The function that should always be necessary and should always apply to the justice system would be the due process function. It applies better because of the fact that no one’s personal rights should ever be violated in order to prosecute someone. Every individual is entitled to their rights and freedoms and is able to challenge the law if their right was violated when they were being searched, arrested, or tried or possible even sentenced. That is why I believe that due process has a greater need in the justice system then the rule of law. The rule of law is very important in the justice system also, as it comes down to which one I firmly believe reflects and protects what the justice system is all about it is due
The Due Process relies on the courts to make it more difficult to be proven guilty. The pros of the Due Process is that you are protected regardless of the race, gender or ethnic background. Yet most individuals