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Template:USBillofRights In United States law, due process (more fully due process of law) is the principle that the government must normally respect all of a person's legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty, or property. Due process has also been interpreted as placing limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice, and liberty. Many nations have similar concepts; for example, Canada and New Zealand have a similar concept that they call "fundamental justice".

Text in the Fifth and Fourteenth Amendments

No person shall be ... deprived of life, liberty, or property, without due process of law....

No State shall ... deprive any person of life, liberty, or property, without due process of law....

History Prior to Ratification of the U.S. Bill of Rights

Many date the concept of "due process" all the way back to the Magna Carta of 1215 A.D., a document born from a struggle between the King and barons. In Chapter 39 of Magna Carta, King John promised as follows:

No free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.[1]

Shorter versions of Magna Carta were subsequently issued by British monarchs, and this chapter of Magna Carta was renumbered "29" instead of "39".[2]

The phrase due process of law first appeared in a statutory rendition of Magna Carta in 1354 A.D. as follows:

No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law. See 28 Edw. 3, c. 3.

Both the clause in Magna Carta and the later statute of 1354 were explained in 1704 by the highest court in England, the King's Bench, in an opinion by Justice Powys (see Regina v. Paty, 92 Eng. Rep. 232, 234):

[I]t is objected, that by Mag. Chart. c. 29, no man ought to be taken or imprisoned, but by the law of the land. But to this I answer, that lex terrae is not confined to the common law, but takes in all the other laws, which are in force in this realm; as the civil and canon law.... By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law ; and the meaning of the statute is, that all commitments must be by a legal authority. And the law of Parliament is as much a law as any; nay, if there be any superiority, this is a superior law.

Throughout centuries of British history, many laws and treatises asserted that various different requirements were part of "due process" or part of the "law of the land", but usually that was merely because of what the actual existing law happened to be, rather than because of any intrinsic requirement. As the U.S. Supreme Court has explained, it was not intended to assert that a requirement "was essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used." [3]

In the United States, the terms law of the land and due process were used somewhat interchangeably. The 1776 Constitution of Maryland, for example, used the language of Magna Carta, including the law of the land phrase.[4] In New York, a statutory bill of rights was enacted in 1787, and it contained four different due process clauses.[5]

New York was the only state that asked Congress to add "due process" language to the U.S. Constitution, and New York did so in 1788 simultaneously with ratifying the Constitution. Here's the language that New York proposed as an amendment to the U.S. Constitution:[6]

That no Person ought to be taken imprisoned or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law.

In response to this proposal from New York, James Madison proposed a Due Process Clause to Congress,[7] and Congress adopted the exact wording that Madison proposed: "No person shall ... be deprived of life, liberty, or property without due process of law...." Incidentally, notice that Madison inserted the word "without," which had not been proposed by New York.

No state or federal constitution had ever before utilized any "due process" wording, prior to 1791 when the federal Bill of Rights was ratified. However, when the U.S. Constitution took effect in 1789, it did contain a Supremacy Clause, which specified that the Constitution itself, and federal statutes enacted pursuant to the Constitution, would be the supreme "law of the land".

Interpretation of the Fifth and Fourteenth Amendments

The Fifth Amendment contains a guarantee of due process applicable only to actions of the federal government. The Fourteenth Amendment contains virtually the same phrase, but expressly applied to the states. The Supreme Court has basically interpreted the two clauses identically.[8] However, many state constitutions also have their own guarantees of due process (or the equivalent) that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to certain individuals than under federal law.

Due process under the U.S. Constitution not only restrains the executive and judicial branches, but has additionally been interpreted as a restraint on the the legislative branch. For example, as long ago as 1855, the Supreme Court explained that, in order to ascertain whether a process is due process, "[w]e must examine the constitution itself, to see whether this process be in conflict with any of its provisions...."[9] In case of such a harmful conflict, the Due Process Class ordinarily entitles a defendant to his liberty, unless or until he is retried, and Congress may not fashion an alternative remedy. Likewise, the Supreme Court held in Chapman v. California, 386 U.S. 18, 22 (1967),[10] that "we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights."

As a limitation on Congress, the Due Process Clause has also been interpreted by the Supreme Court not just as a remedial requirement when other constitutional rights have been violated, but furthermore as having additional "procedural" and "substantive" components, meaning that the Clause purportedly imposes unenumerated restrictions on legal procedures—the ways in which laws may operate—and also on legal substance—what laws may attempt to do or prohibit. This theory of unenumerated rights is controversial. For example, Justice Thomas stated as follows, in the case of Hamdi v. Rumsfeld:[11]

As an initial matter, it is possible that the Due Process Clause requires only "that our Government must proceed according to the 'law of the land'--that is, according to written constitutional and statutory provisions." In re Winship, 397 U. S. 358, 382 (1970) (Black, J., dissenting).

Despite the objections of people like Justice Black, the courts have attempted to extract unwritten requirements from the Due Process Clause, regarding both procedure as well as substance. The distinction between substance and procedure is difficult in both theory and practice to establish. Moreover, the substantive component of due process has proven to be even more controversial than the procedural component, because it gives the Court considerable power to strike down state and federal statutes that criminalize various activities.

By the middle of the 19th Century, "due process of law" was interpreted by the U.S. Supreme Court to mean that "it was not left to the legislative power to enact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will."[12] But determining what those restraints are has been a subject of considerable disagreement.

Procedural due process

Procedural due process is essentially based on the concept of "fundamental fairness". As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings. Procedural due process has also been an important factor in the development of the law of personal jurisdiction.

In the United States, criminal prosecutions and civil cases are governed by explicit guarantees of rights under the Bill of Rights and as incorporated under the Fourteenth Amendment to the States. Due process provides protection to the individual that statutes, regulations, and enforcement actions must at least meet (but can exceed), in order to ensure that no one is deprived of "life, liberty, or property" arbitrarily and without opportunity to affect the judgment or result. This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being punished, which would be tantamount to cruel and unusual punishment.[13]

In 1934 the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).[14]

Substantive due process

The courts have viewed the due process clause as embracing those fundamental rights that are "implicit in ordered liberty". Just what these rights are is not always clear. Some of these rights have long histories or "are deeply rooted" in our society.

The courts have largely abandoned the Lochner era approach (approximately 1890-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract.

Modern substantive due process doctrine protects various aspects of privacy, under which falls rights of bodily autonomy, private sexual activity (Lawrence v. Texas), contraception (Griswold v. Connecticut), and abortion (Roe v. Wade), as well as substantive protections of the Bill of Rights. However, there continues to be debate as to what may have been the Supreme Court's failures to protect enough of our basic liberties, and debate as to what may have been the Supreme Court's past abuses in protecting purportedly fundamental liberties that are not really implied or protected by the Constitution.

Early in American judicial history, various jurists attempted to form theories of natural rights and natural justice that would limit the power of government, especially regarding property and the rights of persons. Opposing "vested rights" were jurists who argued that the written constitution was the supreme law of the State and that judicial review could look only to that document — not to the "unwritten law" of "natural rights". Opponents further argued that the "police power" of government enabled legislatures to regulate the holding of property in the public interest, subject only to specific prohibitions of the written constitution.

The idea of substantive due process came in as a way to import natural law norms into the United States Constitution; prior to the Civil War, the state courts — ungoverned by the Fifth Amendment — were the arenas in which this struggle was carried out. Some critics of substantive due process argue that the doctrine began with the infamous 1857 slavery case of Dred Scott v. Sanford.

The "vested rights" jurists saw in the "law of the land" and "due process" clauses of state constitutions restrictions on the substantive content of legislation. Those jurists were sometimes successful in arguing that certain government infringements were prohibited, regardless of procedure. For example, the New York Supreme Court held that "without 'due process of law,' no act of legislation can deprive a man of his property, and that in civil cases an act of the legislature alone is wholly inoperative to take from a man his property." Wynehamer v. People, 13 N.Y. 378, 418 (N.Y. 1856). However, note that the rationale of Wynehamer was subsequently rejected by the U.S. Supreme Court in the case of Mugler v. Kansas, 123 U.S. 623, 657, 669 (1887).[15] Other antebellum cases on due process include Murray's Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272 (1856) [16] which dealt with procedural due process. But note that the rationale of Murray was subsequently characterized by the U.S. Supreme Court, in the case of Hurtado v. California, as not providing "an indispensible test" of due process.[17] Another important pre-Civil-War milestone in the history of due process was Daniel Webster's argument as counsel in Dartmouth College v. Woodward, 17 U.S. 518 (1819)]. Nevertheless, the U.S. Supreme Court declined to address that aspect of Webster's argument, and the New Hampshire Supreme Court had already rejected it, in Dartmouth College v. Woodward, 1 N. H. 111, 129 (1817).

Given the preceding jurisprudence regarding due process, Chief Justice Taney was not entirely breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the Missouri Compromise unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." In Dred Scott, neither Taney nor dissenting Justice Curtis bothered to mention or rely upon the Court's previous discussion of due process in Murray, and of course Taney and Curtis disagreed about what "due process" meant in that case.

The phrase "substantive due process" was not used until the twentieth century. But, the concept was definitely employed during the nineteenth century.

Following the Civil War, the Fourteenth Amendment's due process clause prompted substantive due process interpretations to be urged on the Supreme Court as a limitation on state legislation. Some of those arguments came to be accepted by the Court over time, imposing on both federal and state legislation a firm judicial hand on property and economic rights that was not removed until the crisis of the 1930's.

Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, it has been charged that substantive due process developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts. Although economic liberty restrictions on legislation were largely abandoned by the courts, substantive due process rights continue to be successfully asserted today in non-economic legislation affecting intimate issues like bodily integrity, marriage, religion, childbirth, child rearing, and sexuality.

Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut, wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights, such as the First Amendment (protecting freedom of expression), Third Amendment (protecting homes from being used by soldiers), Fourth Amendment (security against unreasonable searches), and the Ninth Amendment (addressing unenumerated rights). Although it has never been the majority view, some have argued that the 9th Amendment could be used as a source of fundamental judicially enforceable rights, including a general right to privacy. Note that the rationale of Griswold has since been discarded, and the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights as Justice Harlan had argued in his concurring Griswold opinion, instead of relying on the "penumbras" and "emanations" of the Bill of Rights as the majority opinion did in Griswold.

Social conservatives who oppose sexual privacy rights, or who believe that those rights are properly subject to the democratic process absent further constitutional amendment, can nevertheless perhaps find some things to like in the line of substantive due process decisions. For example, religious parents persuaded the Supreme Court to recognize a substantive due process right "to control the education of one's children" and void state laws mandating that all students attend public school. In Pierce v. Society of Sisters, the Supreme Court said:[18]

We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.

Thus, if the entire substantive due process line was reversed, it is conceivable that religious parents' option of home schooling or private schooling might be in danger from some state universal education laws, although it is also possible that those laws might be deemed to violate "First Amendment principles", as Justice Kennedy speculated in Troxel v. Granville.

Criticisms

Criticisms of the doctrine continue as in the past. Critics argue that justices are reading their personal views into the Constitution instead of interpreting it, or argue that justices are making policy determinations that properly belong with legislators.

Oliver Wendell Holmes, Jr., a formalist, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents, in the case of Baldwin v. Missouri, 281 U.S. 586, 595 (1930).

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.

Originalists, such as Supreme Court Justice Thomas, who rejects substantive due process doctrine, and Supreme Court Justice Scalia, who has questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation". Both Scalia and Thomas have occasionally joined Court opinions that recognize the doctrine, and have in their dissents taken more to arguing over how substantive due process should be employed based on Court precedent. In other words, the main debate in recent decades within the Court over substantive due process seems to have been more about where to apply it, and less about whether it should be applied at all.

Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As propounded in his dissents in Moore v. City of East Cleveland and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will." In his book Democracy and Distrust, non-originalist John Hart Ely criticized "substantive due process" as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase green pastel redness, and was radically undemocratic because it allowed judges to impose substantive values on the political process. Ely argued that the courts should serve to reinforce the democratic process, not to displace the substantive value choices of the people's elected representatives.

The current majority view of the Supreme Court supports substantive due process rights in a number of areas. An alternative to strict originalist theory is advocated by Supreme Court Justice Breyer, one of the Court's supporters of substantive due process rights. Breyer believes the justices need to look at cases in light of how their decisions will promote what he calls "active liberty", the Constitution's aim of promoting participation by citizens in the processes of government. That is an approach that ostensibly emphasizes "the document's underlying values" and looking broadly at a law's purpose and consequences. However, such an approach would also give judges the ability to look very broadly at the consequences and unwritten purpose of constitutional provisions, such as the Due Process Clause, and thereby remove issues from the democratic process.

Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case:[19]

[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.

Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process, and instead most originalists believe that such rights should be identified and protected legislatively, or via further constitutional amendments.

Judicial review of substantive due process violations

When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts use two forms of scrutiny, or judicial review. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used. In order to pass strict scrutiny review, the law or act must be narrowly tailored to a compelling government interest. When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. Here a legitimate government interest is enough to pass this review. A law is more likely to survive constitutional challenges under rational basis scrutiny than under strict scrutiny.

Incorporation

Main article: Incorporation of the Bill of Rights

Incorporation is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's Due Process Clause. Incorporation started with Chicago, Burlington & Quincy Railway Co. v. Chicago (1897) which was a takings case, continued with Gitlow v. New York (1925) which was a First Amendment case, and accelerated in the 1940s and 1950s. Justice Hugo Black famously favored the jot-for-jot incorporation of the entire Bill of Rights. Justice Felix Frankfurter, however—joined later by Justice John M. Harlan—felt that the federal courts should only apply those sections of the Bill of Rights whose abridgment would deny a "fundamental right". It was the latter course that the Warren Court of the 1960s took, although, in the end, almost all of the Bill of Rights was incorporated against the states.

The basis for incorporation is both procedural and substantive due process, and the role of the incorporation doctrine in applying the guarantees of the Bill of Rights to the states is just as notable as the use of due process to define new fundamental rights that are not explicitly guaranteed by the Constitution's text. In both cases, the question has been whether the right asserted is "fundamental", so that, just as not all proposed "new" constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.

Some people, such as Justice Black, have argued that the Privileges or Immunities Clause of the Fourteenth Amendment would be a more appropriate textual source for the incorporation doctrine. It is a common misconception that the Supreme Court rejected that argument in the 1873 Slaughterhouse Cases. Actually, the Court in Slaughterhouse did not prevent application of the Bill of Rights to the states, but rather addressed whether "the state monopoly statute violated 'the natural right of a person' to do business and engage in his trade or vocation." Some people see the Privileges or Immunities Clause as a possible way to implement unenumerated fundamental rights that are currently protected via substantive due process, and that is the notion that was rejected in Slaughterhouse.

Yale Law Professor Akhil Amar has observed the following about incorporation via the Privileges or Immunities Clause:

By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would…have prevented states from depriving "citizens" of due process. [Congressman] Bingham, [Senator] Howard, and company wanted to go even further by extending the benefits of state due process to aliens. But for this, a special clause was needed speaking of "persons," not "citizens."

— Akhil Amar, [20]

According to Amar's understanding, the Due Process Clause in the Fourteenth Amendment is merely meant to extend the coverage of due process from citizens to all persons.

When the Due Process Clause of the Fifth Amendment was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were proposed in separate amendments. As James Madison put it, those rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross." Letter from James Madison to Alexander White (Aug. 24, 1789). Thus, for example, the states were allowed to reject the Sixth Amendment while ratifying all of the other amendments, and in that case the rights in the Sixth Amendment would not have been incorporated into the Constitution. Roger Sherman explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution." Letter from Roger Sherman to Simeon Baldwin (Aug. 22, 1789). The perceived scope of the Due Process Clause was different than it is today. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African-Americans, a "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment.... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause." Robert Cover, Justice Accused 157 (Yale Univ. Press 1975). Fortunately, the Thirteenth Amendment ultimately abolished slavery, and got the federal judiciary out of the business of returning fugitive slaves.

References

  • Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice - by Kevin A. Ring. ISBN 0-89526-053-0
  • "Civil Rights, Congress's Power, and the New Federalism Video from American Constitution Society for Law and Policy
  • "Covering: The Hidden Assault on Our Civil Rights" from Random House and "The Pressure to Cover: The New Civil Rights" By Kenji Yoshino, discussing the potential for liberty rights to overtake equality rights, New York Times Magazine, published January 15, 2006
  • Active Liberty : Interpreting Our Democratic Constitution - by Stephen Breyer. ISBN 0-307-26313-4
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