>> Hello. Today I'm going to talk to you
about a very important concept
in constitutional law, which is due process.
And our entire country is modeled on a due process model
which means we prefer that individuals be treated fairly,
rather than just trying to convict people for crimes.
So I'm going to start with a discussion of the difference
between the federal due process clause
and the state due process clause.
The federal due process clause applies
to the federal government, and it's in the Bill of Rights
in the Fifth Amendment.
The state due process laws came later after the Civil War.
And it applies to the states and it's in the 14th Amendment.
Other than that the clauses are written exactly the same,
and they have the same verbiage and the point
of that verbiage is that states need to provide due process
to their citizens to the same degree
that the federal government needs to provide due process
to the citizens of the United States of America.
And due process can be divided into two kinds.
There is what we call procedural due process,
and procedural due process guarantees the right
to a fair trial.
And a fair trial has been defined
as providing an individual, the individual that's being tried,
the defendant, with notice,
notice of an action against him or her.
And an opportunity to be heard or defend
against those criminal charges.
So if a government action impedes upon an individual's
right to know that charges are being brought against them
and to defend against those charges it violates procedural
due process.
Another aspect of due process, a very important aspect,
is what we call substantive due process.
And substantive due process prevents the government
from impinging upon fundamental rights
by enacting unreasonable laws.
And laws can be unreasonable for a variety of reasons.
Laws can be unreasonable and violate substantive due process
if they are void for vagueness.
And void for vagueness means the laws are ambiguously written,
which means they are subject to more than one interpretation.
And if a law is written ambiguously using ambiguous
terms, leaving it open to different interpretations,
what happens is it gives too much discretion
to law enforcement, and we don't want that.
We want law enforcement to have a very clear picture
of what is an illegal action and what is not.
So let me give you an example.
Let's say a state enacts a law
that prohibits inappropriate attire on state beaches.
The term inappropriate attire is vague.
It can mean different things to different people.
And most importantly it can mean different things
to different law enforcement officers.
So officer A might arrest someone
for wearing a two-piece bathing suit on a state beach
because he thinks that inappropriate.
And officer B might arrest someone
for wearing a bathing suit at all on a state beach
because she thinks all bathing suits are inappropriate.
And you see how unfair that is to citizens.
It doesn't give them notice of what is illegal.
And it gives law enforcement way too much discretion.
Another example of a law
that could violate substantive due process is a law
that is written in an over broad fashion.
And this is different from a vague law.
A law that is over broad is actually not written
with vague terms.
But it criminalizes too much.
It criminalizes conduct that is protected by the Constitution,
as well as criminalizing conduct that is not.
So let me give you an example of this.
Let's say a state enacts a law
that prohibits photographing nude minors,
anyone under the age of 18, for example.
Now this sounds okay on its face.
Of course you don't want people taking photographs of minors
because minors can't give true adult consent
that are nude for sexual purposes.
But what about a picture of a nude baby?
Lots of people take pictures of nude babies.
That's actually a very popular way to take a picture of a baby.
And babies are minors.
So you see how this law criminalizes too much.
Taking a picture of a nude baby should be every mother
and father's right or anyone's right, really,
as long as it's not being used for sexual purposes.
So this law would be over broad.
Criminalizes protected and unprotected conduct
and of course the conduct that's protected
in the nude baby example, the photograph,
would be conduct that's protected
under the First Amendment to the Constitution.
Another thing that's protected
under substantive due process is freedom from arbitrary laws.
And arbitrary laws are laws
that have no government interest supporting them
or no compelling government interest supporting them.
We don't know why they were enacted, actually.
And often an arbitrary law or a law that's being attacked
as arbitrary under substantive due process is a law
that has a moral or an ethical quality to it.
For example, if you enacted a law that prohibited
and criminalized being homeless,
homeless being you can't offer an address
when a law enforcement officer asks you for one
because you don't have one, you don't have a home.
This would be punishing someone for their status.
A homeless person isn't necessarily a criminal.
There's no criminal act inherent in not having an address.
So this law doesn't seem to have any compelling
government interest.
If someone hasn't committed any criminal act,
they should not be punished criminally.
Anyway, good luck with the rest of the lecture.
And please never hesitate to contact me
if you have any questions.