Rights, Justice, and Equality

Due Process of Law

Due process means government must follow fair, established legal procedures before it takes away a person's life, liberty, or property. It also means some government actions are off limits no matter what procedures are used. The idea goes back to the Magna Carta, which promised that no free man would be imprisoned or deprived of his rights "except by the lawful judgment of his equals or by the law of the land."

The Constitution guarantees due process twice:

• The Fifth Amendment (1791) restricts the federal government: no person shall "be deprived of life, liberty, or property, without due process of law."
• The Fourteenth Amendment (1868) applies the same words to the states: "nor shall any State deprive any person of life, liberty, or property, without due process of law."

Two kinds of due process

• Procedural due process: fair procedures. These include notice of charges, a hearing before a neutral decision maker, the chance to present evidence, and the right to counsel in criminal cases.
• Substantive due process: some liberties are so fundamental that government may not take them away without very strong justification, however fair the procedures.

The Fourteenth Amendment's Due Process Clause is also the main vehicle for selective incorporation. That is the process by which the Supreme Court has applied most Bill of Rights protections to the states. Cases such as Gideon v. Wainwright and Miranda v. Arizona are due process landmarks.

The American Justice System and the Rights of the Accused

The American system is adversarial. In a criminal case, the prosecution, representing the government, must prove guilt. The defense tests the government's evidence, and a neutral judge or jury decides. The accused is presumed innocent, and guilt must be proven beyond a reasonable doubt.

Protections in the Constitution

Courts

The United States has two parallel court systems, federal and state. Most criminal cases are tried in state courts under state law. Federal courts hear cases involving the Constitution, federal laws, disputes between states, and certain other matters. The federal structure has three levels: district courts (trial courts), courts of appeals (circuit courts), and the Supreme Court. The Supreme Court hears most of its cases on appeal and chooses which ones to take. Federal judges serve "during good Behaviour," in practice for life. That protects their independence from political pressure.

Civil cases are disputes between private parties, such as over contracts or injuries. The Seventh Amendment preserves the right to a jury trial in many federal civil cases.

Equality Under the Law

Equality under the law means the same laws apply to everyone, and each person is entitled to the same legal rights and protections regardless of who they are. It does not mean everyone has equal wealth or outcomes. It means the law may not play favorites or single out people for unequal treatment without a legitimate reason.

The ideal appears in the Declaration's "all men are created equal." Through much of American history, however, law itself was unequal: slavery, then segregation, along with denial of the vote to women and to many minorities. The story of American equality is the story of closing that gap through:

• constitutional amendments: the 13th, 14th, 15th, 19th, and 24th;
• court decisions, such as Brown v. Board of Education overruling Plessy v. Ferguson;
• legislation, such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965;
• citizen action: abolitionists, suffragists, and the civil rights movement.

In his dissent in Plessy (1896), Justice John Marshall Harlan wrote, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." His view became law decades later.

Equal Protection

The Equal Protection Clause of the Fourteenth Amendment (1868) turned equality into an enforceable constitutional rule:

"No State shall … deny to any person within its jurisdiction the equal protection of the laws."

Fourteenth Amendment, Section 1

Written after the Civil War to protect formerly enslaved people, the clause now protects every "person," citizen or not, against unequal treatment by state governments. The Supreme Court has applied similar requirements to the federal government through the Fifth Amendment's Due Process Clause.

Laws often classify people, for example by age for driving. Courts apply different levels of scrutiny. Classifications based on race receive strict scrutiny and are almost always struck down. Sex-based classifications get heightened scrutiny. Most other classifications need only a rational basis.

Key equal protection cases include Brown v. Board of Education (school segregation unconstitutional), Baker v. Carr and the "one person, one vote" cases that followed, Bush v. Gore, and Obergefell v. Hodges.

Individual Liberty

Individual liberty is the freedom of each person to think, speak, worship, associate, and live as he or she chooses, as long as that does not violate the equal rights of others. In the American tradition, liberty is the default. Government needs a justification to limit it.

• The First Amendment protects freedoms of religion, speech, press, assembly, and petition.
• Other amendments protect privacy in one's home and papers (4th), property (5th), and rights "retained by the people" (9th).
• John Stuart Mill's On Liberty (1859) set out a "harm principle": the only legitimate reason to restrict an adult's liberty is to prevent harm to others.

Liberty and order must be balanced. The Preamble lists both "insure domestic Tranquility" and "secure the Blessings of Liberty." Much constitutional law, especially on speech and searches, is about striking that balance. See Limits on Rights.

Majority Rule and Minority Rights

Democracy runs on majority rule: elections are won and laws are passed by the side with more votes. If majority rule were unlimited, though, a majority could vote to take away the rights of anyone it disliked. The American system therefore combines majority rule with protection of minority rights.

The minorities in question can be racial, religious, or political, or simply anyone on the losing side of an issue. Protections include:

• A written Bill of Rights that majorities cannot override by ordinary legislation. Justice Robert Jackson wrote in West Virginia State Board of Education v. Barnette (1943): "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities."
• Independent courts with life tenure that can strike down laws violating rights.
• Supermajority requirements: two-thirds of each house to propose amendments, three-fourths of states to ratify, two-thirds of the Senate to convict an impeached official or approve a treaty.
• Federalism and the Senate: equal state representation gives smaller states a voice.
• A large republic: Madison argued in Federalist No. 10 that many competing factions make it hard for any single majority faction to form and oppress others. Federalist No. 51 adds that society should be broken "into so many parts, interests, and classes of citizens" that minority rights are secure.

Thomas Jefferson's First Inaugural Address (1801) stated the balance: the will of the majority is to prevail, but "that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect."

Limits on Rights

Constitutional rights are strong, but they are not absolute. Government may limit rights when it has a sufficiently important reason and uses appropriate means. One person's rights end where they seriously endanger others.

• Speech: In Schenck v. United States (1919), Justice Oliver Wendell Holmes wrote that free speech would not protect "a man in falsely shouting fire in a theatre and causing a panic." He introduced the "clear and present danger" test. Today, in Brandenburg v. Ohio (1969), speech can be punished for advocating violence only if it is directed to inciting imminent lawless action and likely to produce it. True threats, defamation, obscenity, and fraud are also unprotected.
• Time, place, and manner: Government may set content-neutral rules on when, where, and how people protest, such as permits or noise limits.
• Schools: Tinker v. Des Moines protects student expression unless it causes "substantial disruption."
• Religion: Belief is absolutely protected. Some religiously motivated conduct can be regulated by neutral, generally applicable laws.
• Searches: The Fourth Amendment bans only unreasonable searches. Warrants, consent, and certain emergencies make searches lawful.
• Guns: Heller recognized an individual right while noting it is "not unlimited."
• Emergencies: Habeas corpus may be suspended during rebellion or invasion. Wartime restrictions have sometimes gone too far. Korematsu is now widely condemned.

Citizenship: Rights, Responsibilities, and Obligations

Becoming a citizen

The Fourteenth Amendment opens: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Citizenship comes by birth on U.S. soil, by birth abroad to citizen parents (under federal law), or through naturalization. Naturalization rules are set by Congress (Art. I, Sec. 8). They generally require lawful permanent residency for a period of years, good moral character, knowledge of English and U.S. civics, and an oath of allegiance. The Fourteenth Amendment overturned the Dred Scott decision, which had denied that Black Americans could be citizens.

Rights, obligations, and responsibilities

Voting is a right and a responsibility, but it is not legally required in the United States. Jury service is a legal obligation when summoned. Some rights belong to all persons, citizen or not, such as due process and equal protection. Others, such as voting in federal elections and serving as president, are limited to citizens.

Civic participation

Citizens influence government by voting, contacting elected officials, testifying at public meetings, petitioning, joining interest groups and political parties, peaceful protest, volunteering for campaigns, and running for office. These are the main tools for changing policy in a republic.