Constitutional Problems: Due Process

A great many books have been written about the U.S. constitution. We have enjoyed some, particularly those, which have pointed out problematic areas, clauses that the authors regretted or wished could be fixed or just would prefer to be understood as they were when they were written.

Here are pulled together some facts and thoughts on 10 clauses in the U.S. constitution that have been ignored, misunderstood or misapplied. Some of the authors merely want the correct meaning to be restored by educating the judiciary, others wish to amend the constitution so as to correct the way the constitution is applied (to repeal or correct the problem clauses), and yet others would like an entirely new constitution. The focus here will be on one of the 10 troubling constitutional clauses:

1. The commerce clause
2. The contracts clause
3. The due process clause (amend 5 and 14)
4. The privileges or immunities clause
5. The equal protection of the laws clause
6. The general welfare clause
7. The necessary and proper clause
8. The supremacy clause
9. The takings and tax clauses
10. The enumeration of rights clause (amend 9)

We have now come to the third of these clauses, The Due Process Clause.

The Due Process Clause

The Fifth Amendment to the United States Constitution says: “. . . No person shall be ... deprived of life, liberty, or property, without due process of law . . . ”

The Fourteenth Amendment to the United States Constitution says: “. . . No State shall ... deprive any person of life, liberty, or property, without due process of law . . . ”

We all deserve a proper process due to us (when accused of a crime or tort), by the law. By what law? By the same law that applies to everyone else.

However, this 21 st century view is not necessarily where we come from. We need to take into account centuries of English and American history of law development to give it real meaning. Our primary source is the Magna Charta.

Respect for law, rather than respect for persons of authority has been a core principle of American and English law for over a thousand years. It is a concept that requires that the same law applies to everyone, the mightiest law-giver and the lowliest peasant. No one may be deprived of his or her life, liberty or property without the proper process of the same law as everyone else is under. This places a limitation on laws and proceedings so that courts rather than legislatures guarantee fairness, justice and liberty.

This writer does not regard “due process” as a mysterious concept, but for those who enjoy it here is a dictionary definition at Lawyers dot com .

In England

The concept of "due process" dates all the way back to chapter 39 of the Magna Charta of 1215 A.D.

"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."

With minor modifications, this remained at the core of law in England from the thirteenth century to this day.

In America

In the early 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 Charta, including the “law of the land” phrase.

The administration of justice in America is according to established rules and principles 1) that a person cannot be deprived of life or liberty or property without appropriate legal procedures and safeguards, and 2) that the same laws and legal procedures and safeguards apply equally to all people (everyone is subject to the exact same laws and procedures).

The core of this is the doctrine of the due process of the law. Depriving anyone of fundamental liberties can only be done by applying the law of the land, i.e., the same law that is applied to everyone. The following section is a brief analysis of history and some major court cases, which applied the due process clauses. An attempt is made to draw out the difficulties that arose in applying them. This clause is troubling in a different way than the others discussed in this series. The chief trouble with the due process clause is that it has been applied and may be applied to cases where other constitutional protections provide an even better defense of liberties. And to neglect those protections, is to make fundamental liberties into alienable properties.

We could end up with the strange notion that a person can be deprived of anything as long as the same legal procedure is followed as is applied to everyone else. Any property you have, in your houses, papers, and effects, your life, liberty and the pursuit of happiness can be taken from you.

The principle that everyone is born with certain inalienable rights is then just a poetic statement in the Declaration of Independence and is evidently not recognized as a constitutional principle.

The historical perspective

New York was the only state that asked Congress to add "due process" language to the U.S. Constitution, proposing "[N]o 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." James Madison replaced the word “but” with “without,” and Congress adopted it as the Fifth Amendment.

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" (Murray v. Hoboken Land, 1855). But determining what those restraints are has been a subject of considerable disagreement.

Procedural due process basics

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, to have the opportunity to be heard at these proceedings, to be represented by an attorney, to have jury trials, use well-known rules of evidence and the presumption of innocence. 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 procedural rights under the Bill of Rights, most of which have been incorporated (applied to the states) under the Fourteenth Amendment to the States. Due process has also been construed to generally protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair 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 (Herrera v. Collins, 1993).

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, 1934).

Substantive due process basics

Due process is more than legal procedure.

Most courts have viewed the due process clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are "implicit in ordered liberty." Just what those 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 (Lochner v. New York , 1905).

Modern substantive due process doctrine protects rights such as the right to privacy, under which rights of private sexual activity ( Lawrence v. Texas ), contraception (Griswold v. Connecticut ), and abortion (Roe v. Wade) fall, as well as most of the substantive protections of the Bill of Rights. However, what are seen as failures to protect enough of our basic liberties, and what are seen as past abuses and present excesses of this doctrine, continue to spur debate over its use.

Development and use of substantive due process as legal doctrine

The phrase “substantive due process” was not used until the twentieth century. But, the concept was arguably employed during the nineteenth century.

Following the Civil War, the Fourteenth Amendment's due process clause prompted a quite “substantive” interpretation 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 1930s.

Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut, 1965, 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), and Fourth Amendment (security against unreasonable searches).

The penumbra-based rationale of Griswold has since been discarded; 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. Although it has never been the majority view, some have argued that the Ninth Amendment (addressing unenumerated rights) could also be used as a source of fundamental judicially enforceable rights, including a general right to privacy.

The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process (Hurtato v. California, 1884), and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter. The doctrine of incorporating the content of other amendments into “due process” was thus an innovation, when it began in 1925 with the Gitlow case, and this doctrine remains controversial today.

Twentieth Century

The Supreme Court held in 1967 (Chapman v. California ) that “we cannot leave to the States the formulation of the authoritative . . . remedies to protect people from infractions by the States of federally guaranteed rights.”

In addition, there were many court debates about the distinction between procedural due process and substantive due process. Substantive due process was considered to consist of those fundamental rights that are implicit in ordered liberty. This would cover instances where a right cannot be violated regardless of what process was employed.

It is not argued here that there have been egregious misapplications of the due process clause, or even serious small errors in it. The problem could be said to be over-application.

Conclusion

An amendment to the constitution ought to be made to re-establish that “fundamental rights are inalienable.” Neither the government nor the individual person in question has the power to deprive any individual person or himself of life or liberty, and that only other acquired property and income can be taken, but only when the owner consents to it contractually or when a court awards it as compensation to a victim he has harmed.

In the absence of such an amendment, it should be argued that cases before courts regarding deprivation of rights be argued once again based on other provisions than the due process clauses.

It would be much preferred to promote the result of recent Ninth Amendment scholarship and to recover fully what was established in the constitution as individual rights and the limits of government by the enumerated powers.

But this would all be made easier if we had an inalienable rights amendment.