Due Process and Selective Incorporation

Due Process and Incorporation

By the end of this lesson, you will be able to explain the due process clauses, describe the incorporation doctrine, and trace how the Bill of Rights became applicable to the states.

Due Process: Two Types

Procedural due process: the government must follow fair procedures before depriving someone of life, liberty, or property.

• Notice: you must be informed of the charge
• Opportunity to be heard: a fair hearing or trial
• Neutral decision-maker

Substantive due process: certain fundamental rights cannot be taken away by the government regardless of the procedures used — some rights are so important that no process justifies their violation.

Example: "your right to marry the person of your choice" cannot be denied even with a perfectly fair hearing; the deprivation itself is unconstitutional.

The Incorporation Doctrine

The original Bill of Rights applied only to the federal government — the First Amendment says "Congress shall make no law..."

The 14th Amendment (1868): "No State shall...deprive any person of life, liberty, or property, without due process of law."

Incorporation: the Supreme Court has interpreted the 14th Amendment's Due Process Clause to incorporate (apply) most Bill of Rights protections to the states.

Selective incorporation: the Court incorporated rights case by case, not all at once. Each major right was incorporated when the Court decided it was "fundamental to ordered liberty" or "deeply rooted in American tradition."

Key Incorporation Cases

Right	Incorporated	Case
1st Amendment (speech)	1925	Gitlow v. New York
1st Amendment (press)	1931	Near v. Minnesota
1st Amendment (religion)	1940–47	Various
4th Amendment (unreasonable search)	1949, 1961	Mapp v. Ohio
5th Amendment (self-incrimination)