Each year as my classes read through the U.S. Constitution, we encounter the phrase “due process of law” in both the Fifth and Fourteenth Amendments. Defining due process is pretty simple: the government has to follow its own rules when depriving someone of their life, liberty, or property — the justice system is not allowed to “make up” new rules that apply just to a particular individual.
Due Process: A Better Definition
But that definition, of course, only provides a surface understanding of due process. In fact, it leaves out half the story since it only deals with what legal experts call “procedural” due process. That’s the easy to understand kind of due process, but it’s not the only kind. There’s also “substantive” due process, which in my experience has been a lot harder for students to grasp.
Being asked to follow rules, after all, is a concept students are well-acquainted with! It only seems sensible that the government should have to follow rules too. Substantive due process, on the other hand, basically deals with freedom itself. Are the laws being enforced ones that violate fundamental constitutional liberties? In other words, does the law itself cross a line that shouldn’t be crossed?
So that’s another reason why so many times people only think of the procedural variety when the phrase “due process of law” crops up. To truly grasp how substantive due process is applied in the courts to test laws, you have to first master what rights are considered to be those “fundamental constitutional liberties.”
Really, though, you can communicate the concept of what substantive due process is without getting into the minutiae of fundamental rights — and that’s how I like to start. It’s really easy, too, building on students’ own experiences! Even better, this quick and easy due process simulation actually gets students to comprehend the basic nature of both procedural and substantive due process!
No materials needed other than your students’ rapt attention. 🙂
The directions are pretty long because I explain in detail. It won’t take long at all to actually do all the steps in class!
1) Quote the relevant portion of the Fifth Amendment to the class: “No person shall be deprived of life, liberty, or property, without due process of law.” Tell them that today’s lesson will zero in on what exactly due process of law actually is — by using a simulation that warps school rules out of anything remotely reasonable! Explain that for purposes of the simulation, they should regard school rules as LAWS instead of just rules.
2) Remind the class that due process protects three basic kinds of rights. See if they can name them. If not, supply the list yourself, and then ask the class to choose one of the three rights: life, liberty, or property.
- If the class chooses life, announce that a new law/school rule is now in effect: Any student caught tying his or her shoelaces during a final exam will be executed by being drowned in chocolate sauce. (Be sensitive – see note after step #9.)
- If the class chooses liberty, announce that a new law/school rule is in effect: Any student caught yawning during a teacher’s lecture will be assigned to serve six hours of detention after school every day for the remainder of the school year.
- If the class chooses property, announce that a new law/school rule is in effect: Any student caught talking to classmates during break/recess/lunch will have all of his or her shoes and socks confiscated and will be banned from borrowing, purchasing, etc. any shoes or socks for the rest of the school year.
Note that those three punishments infringe on the life, liberty, or property rights of the offending students. But note also that the underlying “offenses” embedded in the new rules/laws are ludicrous. This will be important for understanding substantive due process.
3) Ask for a volunteer to play a student who has been “convicted” of the offense you just announced. (Let’s call the volunteer Anita Robertson.) Tell Anita that of course the school wants to be fair, so there’s a set of procedures the school has to follow before meting out the punishment earned. Go over the procedures with the class, perhaps supplying them with a written version for reference:
- Student is allowed to submit objections in writing to the teacher who caught them.
- If not satisfied, student can complain to the principal.
- If still not satisfied, student can refer the discipline decision to the school board.
- The school board has the final say. If they agree by majority vote with the discipline decision, the punishment will be carried out.
4) Run through the procedures. You could do this in a couple of ways:
- Say, “Okay, Anita, you have complained to the teacher and he/she still says you have to be punished. What are you going to do next?” and then “Okay, you have told the principal and he/she is siding with the teacher. What are you going to do next?” and then, “Okay, the school board also thinks you should be punished. So that’s it. You are sentenced to —- (fill in with the punishment in question).
- To jazz the simulation up more, enlist volunteers in advance. Make sure they agree to reply nothing but “guilty” no matter what Anita says. Then, in class, announce along the lines of, “Ok, Anita, here is the teacher who caught you. Make your case,” continuing until the school board has “convicted” her and there is no further appeal. Depending on your other volunteers, this could be fun — See if you can get Anita to plead, explain, etc. — only to be told “Guilty!” at every juncture.
5) Tell the class that justice has been done since the student has definitely received procedural due process. The school did, in fact, follow all of its own rules in applying this discipline. Announce the final result along the lines of “Therefore, because she was caught tying her shoelaces during a final exam, Anita Robertson will be executed by being drowned in chocolate sauce.”
6) Hopefully the class will voice some objection to what has happened! If not, ask them, maybe in a sing-song voice, “So, that was fair, wasn’t it? Anita deserves (fill in punishment)!” This should cue some objections. Play dumb and insist that of course the punishment is fair — after all, the proper procedures were followed! The goal here, of course, is to get the students to articulate that procedures aside, the law itself is wrong. Do what you can to get the students to that point.
7) Explain that when it comes to due process, then, the only issue is NOT the procedures the government follows. Also highly relevant is the law itself. Is it a law that should exist at all? If it is grossly unfair, punishing conduct that should not be punished, then it probably violates fundamental rights. Tell the class that when the courts are examining the LAW to see if it should be a law at all, this is known as substantive due process. Tell them that when the courts are just checking that the government has followed all the rules about how to arrest, charge, and convict someone, that is known as procedural due process. Ask for one or two students to explain the two types of due process. See if they can dream up an original example to illustrate the types.
8) Sum up by stating that yes, there are two types of due process, procedural and substantive, and that they are both important. Define them again if you feel that is needed. Then ask the class which type is more important. Get them talking/debating the issue.
9) Finally, announce that this matter went to court, where Anita’s lawyer argued that the school’s rule/law violated her substantive due process rights because it infringed on her fundamental liberties. As such, the discipline is cancelled and Anita is once again considered a student in good standing.
Be Sensitive to Your Own Students’ Situations
Some teachers may not want to deal with the “death penalty” scenario at all because it could be triggering for students who have had unfortunate experiences. Another reason to avoid it could be if students are very opposed to the death penalty on principle, since in that case it could be hard to focus the simulation on due process when the students are zeroing in on 8th Amendment considerations.
If a punishment that infringes on life is not, in your view, a good direction for the simulation, then just ask students to choose from liberty or property in step #2.
Exaggerated by Design
Obviously, both the offenses and the punishments in the new “rules/laws” are ridiculous. This serves a purpose: It helps emphasize the simulated nature of what follows, since nobody would take those rules seriously. That can lighten up the situation a bit, because otherwise, some students might find it distressing to participate in or watch the simulation.
Personally, I wouldn’t want to run this simulation with items that sounded more real – imagine how students might react if the new “rule/law” was that students who cheated on the final exam would be automatically expelled. That’s close enough to possible that student reactions might be counter-productive to the point you’re making, which is to help them understand the two types of due process.
The fun thing about this simulation, of course, is that you can switch around the new rules/laws and the punishments to new ones that your own students might best relate to.
Ideas for Follow-Ups and Extended Thinking
The simulation should only take about 10 minutes, but if you want to continue the theme of procedural and substantive due process for considerably longer, one or more of these options might be useful.
- Have students, individually or in teams, write a story that demonstrates both procedural and substantive due process in action. To help students get started, you could re-tell the simulation in story form to provide an example.
- Explain that in U.S. courts, substantive due process doesn’t really mean that judges overrule any laws they find unfair or unreasonable. It means that they overrule laws that violate fundamental rights. Ask students to list those rights they believe are so fundamental that any law abridging them is automatically considered highly questionable. (Such laws can in fact be ruled valid, but only if the government can demonstrate a “compelling interest” that makes the law necessary.)
- Continuing the theme of fundamental rights, ask students to complete the included worksheet (available in the free PDF download of the simulation — click the image at the top to jump to the product on my Teachers Pay Teachers store), which asks them to identify those rights they think should be fundamental, and also to anticipate the view of these rights by the nation’s judicial system. This worksheet has a trick/twist – ALL of the rights listed have been ruled to be “fundamental” by U.S. Courts, as can be seen on the answer key that follows the student worksheet. This twist makes the worksheet super-easy to correct and discuss with the class, plus it means that student responses provide instant feedback to them as to how much their thinking is in sync with current jurisprudence.
The following resources can be found in the free PDF download of this Quick and Easy Due Process of Law simulation.
FUNDAMENTAL RIGHTS WORKSHEET: YOU BE THE JUDGE
FUNDAMENTAL RIGHTS WORKSHEET ANSWER KEY
INTRODUCTION AND COMPLETE STEP-BY-STEP TEACHING PROCEDURE
ADDITIONAL TEACHING NOTES
Looking for more creative ways to engage your students’ interest in government and civics topics?