Due Process, Criminal Rights, and Privacy

The Constitution doesn’t just limit what government can do; it limits how government can do it. Procedure matters.

Due Process

The Fifth and Fourteenth Amendments prohibit government from depriving persons of “life, liberty, or property, without due process of law.”

Two Types of Due Process

Procedural due process: Government must follow fair procedures before taking life, liberty, or property. Notice, hearing, opportunity to respond.

Substantive due process: Some rights are so fundamental that government cannot infringe them regardless of procedures. This is how the Court has protected unenumerated rights like privacy.

What Process Is Due?

It depends on the interest at stake. The more significant the deprivation, the more process required.

Minimal: Taking your driver’s license for unpaid tickets (administrative hearing)

Significant: Terminating welfare benefits (hearing before a neutral decision-maker)

Maximum: Criminal prosecution (full trial with jury, counsel, confrontation rights)

Rights of the Accused

The Fourth, Fifth, Sixth, and Eighth Amendments create an elaborate system of criminal procedure protections.

Fourth Amendment: Searches and Seizures

“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…”

The warrant requirement: Police generally need a warrant (issued by a judge upon probable cause) before searching.

Exceptions are numerous:

• Consent
• Search incident to arrest
• Plain view
• Automobile exception
• Exigent circumstances
• Stop and frisk (Terry stops)

Exclusionary rule: Evidence obtained through unconstitutional searches cannot be used in court.

Mapp v. Ohio (1961): Applied the exclusionary rule to states. If police illegally search your home, the evidence gets thrown out even in state court.

Fifth Amendment Rights

Grand jury: Federal felony prosecutions require grand jury indictment. (Not incorporated against states.)

Double jeopardy: Can’t be tried twice for the same offense after acquittal.

Self-incrimination: Can’t be forced to testify against yourself.

Miranda v. Arizona (1966): Before custodial interrogation, police must inform suspects of their rights:

• Right to remain silent
• Anything said can be used against them
• Right to an attorney
• If they can’t afford one, one will be provided

Failure to give Miranda warnings renders statements inadmissible.

Sixth Amendment Rights

Speedy trial: No indefinite detention while awaiting trial.

Public trial: Proceedings are open to the public.

Impartial jury: Jury trial right in criminal cases.

Notice: Must know the charges against you.

Confrontation: Right to cross-examine witnesses.

Counsel: Right to an attorney.

Gideon v. Wainwright (1963): States must provide attorneys to indigent defendants in felony cases. The right to counsel means little if you can’t afford one.

Eighth Amendment

Excessive bail: Bail can’t be set unreasonably high to effectively deny release.

Cruel and unusual punishment: Prohibits torture and disproportionate sentences.

What counts as “cruel and unusual” evolves. The Court has banned execution of the intellectually disabled and juveniles. It upholds lethal injection despite challenges.

The Right to Privacy

Here’s where it gets controversial. The word “privacy” doesn’t appear in the Constitution.

Finding Privacy in the Constitution

Griswold v. Connecticut (1965): Struck down a law banning contraceptives for married couples.

Justice Douglas found a right to privacy in the “penumbras” and “emanations” of various amendments:

• First Amendment (association)
• Third Amendment (no quartering)
• Fourth Amendment (searches)
• Fifth Amendment (self-incrimination)
• Ninth Amendment (unenumerated rights)

Together, these create “zones of privacy.”

Privacy’s Expansion

Roe v. Wade (1973): Extended privacy to include a woman’s decision to have an abortion. States could regulate but not ban abortion before viability.

Lawrence v. Texas (2003): Struck down sodomy laws. Government can’t criminalize private sexual conduct between consenting adults.

Privacy’s Contraction

Dobbs v. Jackson Women’s Health Organization (2022): Overruled Roe v. Wade.

The majority held that abortion is not a constitutional right because it’s:

• Not mentioned in the Constitution
• Not deeply rooted in the nation’s history and traditions
• Unlike other privacy rights because it involves potential life

States can now ban abortion entirely.

What’s Left of Privacy?

After Dobbs, which privacy rights remain protected?

The majority said its holding doesn’t affect:

• Contraception (Griswold)
• Same-sex marriage (Obergefell)
• Same-sex intimacy (Lawrence)

But Justice Thomas’s concurrence urged reconsidering all substantive due process cases, creating uncertainty.

The Debate

Critics of substantive due process say courts shouldn’t invent rights not in the Constitution’s text. Judges impose their preferences under the guise of constitutional interpretation.

Defenders say the Constitution protects fundamental liberties even when not explicitly listed. The Ninth Amendment says so: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This debate is central to constitutional law.

The Takeaway

Criminal procedure rights protect individuals from government overreach. Due process ensures fair treatment. Privacy rights (to the extent they survive) protect intimate decisions.

Understanding these rights means understanding:

• The exclusionary rule and its purpose
• Miranda rights and when they apply
• The right to counsel and its practical importance
• The contested nature of constitutional privacy
• How Dobbs changed the landscape

These rights define the relationship between individuals and state power. They’re the front line of liberty.