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Encyclopedia > Due Process
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In United States law, adopted from English Law, due process (more fully due process of law) is the principle that the government must 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 frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to guarantee fundamental fairness, justice, and liberty. The latter interpretation is analogous to the concepts of natural justice and procedural justice used in various other jurisdictions. The law of the United States is derived from the common law of England, which was in force at the time of the Revolutionary War. ... English law is a formal term of art that describes the law for the time being in force in England and Wales. ... For other uses, see Law (disambiguation). ... Natural justice is a legal philosophy used in some jurisdictions in the determination of just, or fair, processes in legal proceedings. ... Procedural justice concerns the fairness of the processes by which decisions are made--as contrasted with the distributive justice (fairness in the distribution of rights or resources) and corrective justice (fairness in the rectification of wrongs). ...

Contents

Text in the United States Constitution

The Fifth Amendment to the United States Constitution says: Amendment V (the Fifth Amendment) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure. ...

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

The Fourteenth Amendment to the United States Constitution says: Amendment XIV in the National Archives The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments (known as the Reconstruction Amendments), first intended to secure rights for former slaves. ...

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

History prior to U.S. Bill of Rights

The term "due process" existed long before 1791 when it was inserted into the U.S. Constitution. The term had a lengthy history in both England and America.


In England

The concept of "due process" dates all the way back to the Magna Carta of A.D. 1215. In Chapter 39 of the Magna Carta, King John of England 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] Magna Carta itself immediately became part of the "law of the land", and Chapter 61 of that great charter authorized an elected body of twenty-five barons to determine by majority vote what redress the King must provide when the King offends "in any respect against any man."[1] Thus, Magna Carta not only required the monarchy to obey the law of the land, but also limited how the monarchy could change the law of the land. Magna Carta Magna Carta (Latin for Great Charter, literally Great Paper), also called Magna Carta Libertatum (Great Charter of Freedoms), is an English charter originally issued in 1215. ... This article is about the King of England. ...


Shorter versions of Magna Carta were subsequently issued by British monarchs, and Chapter 39 of Magna Carta was renumbered "29."[2] The phrase due process of law first appeared in a statutory rendition of Magna Carta in A.D. 1354 during the reign of Edward III of England, 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."[3] This article is about the King of England. ...


In 1608, the great English jurist Edward Coke wrote a treatise in which he discussed the meaning of Magna Carta. Coke explained that no man shall be deprived but by legem terrae, the law of the land, "that is, by the common law, statute law, or custom of England.... (that is, to speak it once and for all) by the due course, and process of law."[4] Sir Edward Coke Sir Edward Coke (pronounced cook) (1 February 1552 – 3 September 1634), was an early English colonial entrepreneur and jurist whose writings on the English common law were the definitive legal texts for some 300 years. ...


Both the clause in Magna Carta and the later statute of 1354 were again explained in 1704 (during the reign of Queen Anne) by the Queen's Bench, in the case of Regina v. Paty.[5] In that case, the House of Commons had deprived John Paty and certain other citizens of the right to vote in an election, and had committed them to Newgate Prison merely for the offense of pursuing a legal action in the courts.[6] The Queen's Bench, in an opinion by Justice Powys, explained the meaning of "due process of law" as follows: Anne (6 February 1665 – 1 August 1714) became Queen of England, Scotland and Ireland on 8 March 1702, succeeding William III and II. Her Roman Catholic father, James II and VII, was forcibly deposed in 1688; her brother-in-law and her sister then became joint monarchs as William III... One of the ancient courts of England, the Kings Bench (or Queens Bench when the monarch is female) is now a division of the High Court of Justice of England and Wales. ... Type Lower House Speaker Michael Martin, (Non-affiliated) since October 23, 2000 Leader Harriet Harman, (Labour) since June 28, 2007 Shadow Leader Theresa May, (Conservative) since May 5, 2005 Members 659 Political groups Labour Party Conservative Party Liberal Democrats Scottish National Party Plaid Cymru Democratic Unionist Party Sinn Féin... Newgate, the old city gate and prison. ...

[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.[5]

Chief Justice Holt dissented in this case, because he believed that the commitment had not in fact been by a legal authority. The House of Commons had purported to legislate unilaterally, without approval of the House of Lords, ostensibly in order to regulate the election of its members.[7] Although the Queen's Bench held that the House of Commons had not infringed or overturned due process, John Paty was ultimately freed by Queen Anne when she prorogued Parliament. Sir John Holt, (1642-1710) was Lord Chief Justice of England and Wales, from April 17, 1689 to March 11, 1710. ... This article is about the British House of Lords. ... A prorogation is the period between two sessions of a legislative body. ...


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."[8]


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 Carta, including the law of the land phrase.[9] In New York, a statutory bill of rights was enacted in 1787, and it contained four different due process clauses.[10] Alexander Hamilton commented on the language of that New York bill of rights: "The words 'due process' have a precise technical import...."[11] Alexander Hamilton (January 11, 1755 or 1757[1]—July 12, 1804) was an Army officer, lawyer, Founding Father, American politician, leading statesman, financier and political theorist. ...


New York was the only state that asked Congress to add "due process" language to the U.S. Constitution. New York ratified the U.S. Constitution and proposed the following amendment in 1788: "[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."[12]


In response to this proposal from New York, James Madison drafted a Due Process Clause for Congress.[13] Madison cut out some language, and inserted the word without, which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed, after Madison explained that the Due Process Clause would not be sufficient to protect various other rights:

Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed.[14]

No state or federal constitution in the United States 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". As mentioned, in the early United States, the terms law of the land and due process were used somewhat interchangeably. Article VI, Paragraph 2 of the United States Constitution is known as the Supremacy Clause: The Supremacy Clause establishes the Constitution, Federal Statutes, and U.S. treaties as the supreme law of the land. ...


Interpretation of Due Process Clause in U.S. Constitution

The Fifth Amendment guarantee of due process is 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 interpreted the two clauses identically, as Justice Felix Frankfurter once explained in a concurring opinion: "To suppose that 'due process of law' meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection."[15] Amendment V (the Fifth Amendment) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure. ... ... Amendment XIV in the National Archives The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments (known as the Reconstruction Amendments), first intended to secure rights for former slaves. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      A U.S. state is any one of the fifty subnational entities of... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      The Supreme Court of the United States (sometimes colloquially referred to by the... Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Associate Justice of the United States Supreme Court. ...


The due process clause applies to "legal persons" (that is, corporate personhood) as well as to individuals. 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. A juristic person is a legal fiction through which the law allows a group of natural persons to act as if it were a single composite individual for certain purposes. ...


Due process under the U.S. Constitution not only restrains the executive and judicial branches, but additionally restrains 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, the first step is to "examine the constitution itself, to see whether this process be in conflict with any of its provisions...."[16] In case a person is deprived of liberty by a process that conflicts with some provision of the Constitution, then the Due Process Clause normally prescribes the remedy: restoration of that person's liberty. The Supreme Court held in 1967 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."[17] Wikisource has original text related to this article: The United States Constitution The United States Constitution is the supreme law of the United States of America. ...


As a limitation on Congress, the Due Process Clause has been interpreted by the Supreme Court not only 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 Clarence Thomas stated as follows, in a 2004 dissent:[18] Clarence Thomas (born June 23, 1948) is an American jurist and has been an Associate Justice of the Supreme Court of the United States since 1991. ...

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 Hugo Black in Winship, 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. Hugo Black Hugo LaFayette Black (February 27, 1886 – September 25, 1971) was a Justice of the Supreme Court of the United States (1937 - 1971). ...


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."[19] 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, 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. Personal jurisdiction, jurisdiction of (or over) the person, or jurisdiction in personam is the power of a court to require a party (usually the defendant) or a witness to come before the court. ...


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 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.[20] The United States Bill of Rights consists of the first 10 amendments to the United States Constitution. ... Incorporation of the Bill of Rights is the legal doctrine by which portions of the U.S. Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment. ... The Statute of Grand Duchy of Lithuania A statute is a formal, written law of a country or state, written and enacted by its legislative authority, perhaps to then be ratified by the highest executive in the government, and finally published. ... Amendment VIII (the Eighth Amendment) of the United States Constitution, which is part of the U.S. Bill of Rights, prohibits excessive bail or fines, as well as cruel and unusual punishment. ...


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".[21]


Substantive due process

Substantive due process basics

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 American 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. This article or section does not cite its references or sources. ... Charles James Fox as the biblical serpent tempting John Bull away from monarchy in this James Gillray satire of the Jacobin movement Freedom of contract is a natural law concept that individuals should be free to bargain over the terms of their own contracts without government interference. ...


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. Holding A Texas law prohibiting homosexual sodomy violated the privacy and liberty of adults, under the Due Process Clause of the Fourteenth Amendment, to engage in private intimate conduct. ... Holding A Connecticut law criminalizing the use of contraceptives violated the right to marital privacy. ... Holding Texas law making it a crime to assist a woman to get an abortion violated her due process rights. ...


Development and use of substantive due process as legal doctrine

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, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sanford. Some advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott, but argue that it was employed incorrectly. Combatants United States of America (Union) Confederate States of America (Confederacy) Commanders Abraham Lincoln, Ulysses S. Grant Jefferson Davis, Robert E. Lee Strength 2,200,000 1,064,000 Casualties 110,000 killed in action, 360,000 total dead, 275,200 wounded 93,000 killed in action, 258,000 total... Holding Blacks, whether slaves or free, could not become United States citizens and the plaintiff therefore lacked the capacity to file a lawsuit. ...


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 Court of Appeals held in Wynehamer v. New York 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."[22] However, the rationale of Wynehamer was subsequently rejected by the U.S. Supreme Court.[23] Other antebellum cases on due process include Murray v. Hoboken Land, which dealt with procedural due process.[24] But, the rationale of Murray was subsequently characterized by the U.S. Supreme Court, in the case of Hurtado v. California, as not providing "an indispensable test" of due process.[25]


Another important pre-Civil-War milestone in the history of due process was Daniel Webster's argument as counsel in Dartmouth College v. Woodward, that the Due Process Clause forbids bills of attainder and various other types of bad legislation.[26] Nevertheless, the U.S. Supreme Court declined in the Dartmouth case to address that aspect of Webster's argument, the New Hampshire Supreme Court had already rejected it,[27] and the U.S. Supreme Court would later contradict Webster's rationale.[28] Daniel Webster (January 18, 1782 – October 24, 1852), was a leading American statesman during the nations antebellum era. ... Holding The charter granted by the British crown to the trustees of Dartmouth College, in New-Hampshire, in the year 1769, is a contract within the meaning of that clause of the constitution of the United States, (art. ... A bill of attainder (also known as an act or writ of attainder) is an act of legislature declaring a person or group of persons guilty of some crime, and punishing them, without benefit of a trial. ...


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 mentioned or relied upon the Court's previous discussion of due process in Murray, and Curtis disagreed with Taney about what "due process" meant in Dred Scott. Roger Brooke Taney (March 17, 1777 – October 12, 1864) was the fifth Chief Justice of the United States, from 1836 until his death in 1864, and the first Roman Catholic to hold that office. ... The United States in 1820. ... Benjamin Robbins Curtis (4 November 1809 _ 15 September 1874) was an American attorney and United States Supreme Court Justice. ...


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 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 1930s.


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), 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. Holding A Connecticut law criminalizing the use of contraceptives violated the right to marital privacy. ... The Bill of Rights in the National Archives. ... John Marshall Harlan II (May 20, 1899 – December 29, 1971) was an American jurist. ... The Bill of Rights in the National Archives Amendment IX (the Ninth Amendment) to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution. ...


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:[29] Pierce v. ...

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. Current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision when one is available.[30] This article is about the Associate Justice of the U.S. Supreme Court. ... Holding A law that allows anyone to petition a court for child visitation rights over parental objections unconstitutionally infringes on parents fundamental right to rear their children. ...


Criticisms of substantive due process

Criticisms of the doctrine continue as in the past. Critics argue that judges are making determinations of policy and morality that properly belong with legislators (e.g. "legislating from the bench"), or argue that judges are reading views into the Constitution that are not really implied by the document, or argue that judges are claiming power to expand the liberty of some people at the expense of other people's liberty (e.g. as in the Dred Scott case), or argue that judges are addressing substance instead of process.


Oliver Wendell Holmes, Jr., a formalist, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents:[31] Oliver Wendell Holmes, Jr. ... Legal formalism is a Positivist view in jurisprudence and the philosophy of law. ...

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 also questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation"[32] or an "oxymoron."[33] Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued 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. Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy. ... Clarence Thomas (born June 23, 1948) is an American jurist and has been an Associate Justice of the Supreme Court of the United States since 1991. ... Antonin Gregory Scalia (born March 11, 1936[1]) is an American jurist and the second most senior Associate Justice of the Supreme Court of the United States. ...


Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland[34] 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. Byron Raymond White (June 8, 1917 – April 15, 2002) won fame both as a football running back and as an associate justice of the Supreme Court of the United States. ... Holding Texas law making it a crime to assist a woman to get an abortion violated her due process rights. ... Holding A Georgia law prohibiting sodomy was valid because there was no constitutionally protected right to engage in homosexual sodomy. ... John Hart Ely John Hart Ely (December 3, 1938 - October 25, 2003) is one of the most widely-cited legal scholars in United States history, ranking just after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes, Jr. ...


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: "[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."[35]


Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process. For example, most substantive due process liberties could reasonably have been contained within the Privileges or Immunities clause of the Fourteenth Amendment (e.g., the "right to privacy" could have been a privilege of being a United States citizen instead of being a normative component of due process). However, The Slaughterhouse Cases effectively read the substantive component of this clause out of the Constitution. While the arguable inevitability of these expanded, non-textual liberties (regardless of the textual support) urges a judicial role in protecting political minorities, most originalists believe that such rights should be identified and protected by the majority, either legislatively, or (where the legislature lacks the power) via constitutional amendments.


The perceived scope of the Due Process Clause was originally 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."[36] Fortunately, the Thirteenth Amendment ultimately abolished slavery, and removed the federal judiciary from the business of returning fugitive slaves. But until then, it was "scarcely questioned" (as Abraham Lincoln put it) that the Constitution "was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law."[37] Amendment XIII in the National Archives The Thirteenth Amendment to the United States Constitution officially abolished, and continues to prohibit slavery and, with limited exceptions (those convicted of a crime), prohibits involuntary servitude. ... For other uses, see Abraham Lincoln (disambiguation). ...


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 nowadays primarily 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.[38] In order to pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest. Judicial review is the power of a court to review the actions of public sector bodies in terms of their legality or constitutionality. ... Strict scrutiny is the highest standard of judicial review used by courts in the United States. ...


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. This means that the government's goal must simply be something that it is acceptable for the government to pursue. The means used by the legislation only have to be reasonable for getting to the government's goals; they need not be the best. Under a rational basis test, the burden of proof is on the challenger. Thus it is rare that laws are overturned after a rational basis test, although this is not unheard of.[39] Rational basis rest, in U.S. constitutional law, is the lowest level of scrutiny applied by courts deciding constitutional issues through judicial review. ...


There is also a middle level of scrutiny, called intermediate scrutiny, but it is primarily used in Equal Protection cases rather than in Due Process cases: “The standards of intermediate scrutiny have yet to make an appearance in a due process case.”[40] Intermediate scrutiny, in U.S. constitutional law, is the middle level of scrutiny applied by courts deciding constitutional issues through judicial review. ...


Incorporation of the Bill of Rights into due process

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 in 1897 with a takings case,[41] 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, almost all of the Bill of Rights has now been incorporated jot-for-jot against the states. Incorporation of the Bill of Rights is the legal doctrine by which portions of the U.S. Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment. ... United States Bill of Rights The Bill of Rights is the name given to the first ten amendments to the United States Constitution. ... Holding Though the Fourteenth Amendment prohibits states from infringing free speech, the defendant was properly convicted under New Yorks criminal anarchy law for advocating the violent overthrow of the government, through the dissemination of Communist pamphlets. ... Year 1925 (MCMXXV) was a common year starting on Thursday (link will display the full calendar) of the Gregorian calendar. ... “First Amendment” redirects here. ... The 1940s decade ran from 1940 to 1949. ... the first thing that was invented was the automatic DILDO. Education grew explosively because of a very strong demand for high school and college education. ... Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States. ... Hugo Black Hugo LaFayette Black (February 27, 1886 – September 25, 1971) was a Justice of the Supreme Court of the United States (1937 - 1971). ... Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Associate Justice of the United States Supreme Court. ... John Marshall Harlan II (May 20, 1899 – December 29, 1971) was an American jurist. ... For the swing saxophonist and occasional singer, see Earle Warren Earl Warren (March 19, 1891 – July 9, 1974) was a California district attorney of Alameda County, the 20th Attorney General of California, the 30th Governor of California, and the 14th Chief Justice of the United States (from 1953 to 1969). ... The 1960s decade refers to the years from 1960 to 1969. ...


The basis for incorporation is substantive due process regarding enumerated substantive rights, and procedural due process regarding enumerated procedural rights.[42] 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. The Court has not taken that course, and some point to the treatment given to the Privileges or Immunities Clause in the 1873 Slaughterhouse Cases as a reason why. Although, the Slaughterhouse Court did not expressly preclude application of the Bill of Rights to the states, the Clause largely ceased to be invoked in opinions of the Court following the Slaughterhouse Cases, and when incorporation did begin, it was under the rubric of due process. Scholars who share Justice Black's view, such as Akhil Amar, argue that the Framers of the Fourteenth Amendment, like Senator Jacob Howard and Congressman John Bingham, included a Due Process Clause in the Fourteenth Amendment for the following reason: "By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would...have prevented states from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens."[43] This provision of the Fourteenth Amendment to the United States Constitution is unique among constitutional provisions in that some scholars believe it was all but read out of the Constitution in a 5-4 decision of the Supreme Court (see Slaughterhouse Cases of 1873). ... Holding The 14th Amendment does not protect the privileges and immunities of state citizenship, only national citizenship. ... Akhil Reed Amar is a Southmayd Professor of Law at the Yale Law School. ... Jacob Merritt Howard (July 10, 1805 – April 2, 1871) was a U.S. Representative and U.S. Senator from the state of Michigan during and after the American Civil War. ... John Bingham (1815–1900) was a Republican Congressman from Ohio, a Radical Republican, and the principal framer of the Fourteenth Amendment to the United States Constitution. ...


The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process,[44] and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter. When the Bill of Rights was originally proposed by Congress in 1789 to the states, various substantive and procedural 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," as James Madison put it.[45] 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."[46] Thus, the states were allowed to reject the Sixth Amendment, for example, while ratifying all of the other amendments including the Due Process Clause; in that case, the rights in the Sixth Amendment would not have been incorporated against the federal government. 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. James Madison (March 16, 1751 – June 28, 1836), was an American politician and the fourth President of the United States (1809–1817), and one of the Founding Fathers of the United States. ... Shermans marble statute in the National Statuary Hall Collection in the United States Capitol. ...


International due process

Various countries recognize some form of due process under customary international law. Although the specifics are often unclear, most nations agree that they should guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they are bound to grant no more rights to aliens than they do to their own citizens—the doctrine of national treatment—which also means that both would be vulnerable to the same deprivations by the government. With the growth of international human rights law and the frequent use of treaties to govern treatment of foreign nationals abroad, the distinction in practice between these two perspectives may be disappearing. In law, custom can be described as the established patterns of behavior that can be objectively verified within a particular social setting. ... This article or section is in need of attention from an expert on the subject. ... Citizenship is membership in a political community (originally a city but now a state), and carries with it rights to political participation; a person having such membership is a citizen. ... National treatment is a debated (and perhaps abandoned) principle in customary international law, but a vital one to many treaty regimes. ... Human rights are rights which some hold to be inalienable and belonging to all humans. ... This does not cite any references or sources. ...


Footnotes

  1. ^ a b The Text of Magna Carta (1215)
  2. ^ The Text of Magna Carta (1297)
  3. ^ 28 Edw. 3, c. 3
  4. ^ 2 Institutes of the Laws of England 46 (1608)
  5. ^ a b Regina v. Paty, 92 Eng. Rep. 232, 234 (1704) reprinted in Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas: In the Reigns of the Late King William, Queen Anne, King George the First, and King George the Second, Volume 2, page 1105, 1108 (1792).
  6. ^ Dudley Julius Medley, A Student's Manual of English Constitutional History 613 (1902)
  7. ^ George Godfrey Cunningham,4 Lives of Eminent and Illustrious Englishmen 54 (1835)
  8. ^ Hurtado v. California, 110 U.S. 516 (1884)
  9. ^ Constitution of Maryland (1776)
  10. ^ New York Bill of Rights (1787)
  11. ^ Alexander Hamilton, Remarks on an Act for Regulating Elections, New York Assembly (6 February 1787)
  12. ^ New York Ratification Resolution (1788)
  13. ^ Madison Speech (1789)
  14. ^ Madison Speech (1789)
  15. ^ Malinski v. New York, 324 U.S. 401, 415 (1945) (Frankfurter, J., concurring)
  16. ^ Murray v. Hoboken Land, 59 U.S. 272 (1855)
  17. ^ Chapman v. California, 386 U.S. 18, 22 (1967)
  18. ^ Hamdi v. Rumsfeld, 542 U.S. 507 (2004) quoting In re Winship, 397 U.S. 358, 382 (Black, J., dissenting)
  19. ^ Murray v. Hoboken Land, 59 U.S. 272 (1855)
  20. ^ Herrera v. Collins, 506 U.S. 390 (1993)
  21. ^ Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)
  22. ^ Wynehamer v. New York, 13 N.Y. 378, 418 (N.Y. 1856)
  23. ^ Mugler v. Kansas, 123 U.S. 623, 657, 669 (1887)
  24. ^ Murray v. Hoboken Land 59 U.S. 272 (1856)
  25. ^ Hurtado v. California, 110 U.S. 516 (1884)
  26. ^ Dartmouth College v. Woodward, 17 U.S. 518 (1819). Webster argued to the Supreme Court as follows: "The meaning [of the phrase 'law of the land'] is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land."
  27. ^ Dartmouth College v. Woodward, 1 N. H. 111, 129 (1817): "[H]ow a privilege can be protected from the operation of a law of the land, by a clause in the [state] constitution, declaring that it shall not be taken away, but by the law of the land, is not very easily understood."
  28. ^ Hurtado v. California, 110 U.S. 516 (1884): "[B]ills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land."
  29. ^ Pierce v. Society of Sisters, 268 U.S. 510 (1925)
  30. ^ Graham v. Connor, 490 U.S. 386 (1989). Also see United States v. Lanier, 520 U.S. 259 (1997): “Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.”
  31. ^ Baldwin v. Missouri, 281 U.S. 586, 595 (1930)
  32. ^ Chicago v. Morales, 527 U.S. 41 (1999) (Scalia, J., dissenting)
  33. ^ U.S. v. Carlton 512 U.S. 26 (1994) (Scalia, J., concurring)
  34. ^ Moore v. East Cleveland, 431 U.S. 494, 543-544 (1977) (White, J., dissenting)
  35. ^ University of Michigan v. Ewing, 474 U.S. 214 (1985) quoting Moore v. East Cleveland, 431 U.S. 494, 543-544 (1977) (White, J., dissenting)
  36. ^ Robert Cover, Justice Accused 157 (Yale Univ. Press 1975)
  37. ^ Abraham Lincoln, First Inaugural Address (Mar. 4, 1861)
  38. ^ See, e.g., Adarand Constructors v. Pena, 515 U.S. 200 (1995); Sugarman v. Dougall, 413 U.S. 634 (1973); Sherbert v. Verner, 374 U.S. 398 (1963).
  39. ^ See, e.g. Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); Zobel v. Williams, 457 U.S. 55 (1982); United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973).
  40. ^ Shaman, Jeffrey. Constitutional Interpretation: Illusion and Reality (Greenwood 2001).[1]
  41. ^ Chicago, Burlington & Quincy Railway Co. v. Chicago, 205 U.S. 530 (1897)
  42. ^ Congressional Research Service, Fourteenth Amendment: Rights Guaranteed: Procedural Due Process: Criminal: “practically all the criminal procedural guarantees of the Bill of Rights--the Fourth, Fifth, Sixth, and Eighth Amendments--contain limitations which are fundamental to state criminal justice systems and that the absence of one or the other particular guarantees denies a suspect or a defendant due process of law.”
  43. ^ Akhil Amar, The Bill of Rights and the Constitution, 101 Yale Law Journal 1193 (1992)
  44. ^ Hurtado v. California, 110 U.S. 516 (1884): "when the same phrase was employed ... it was used in the same sense and with no greater extent."
  45. ^ Letter from James Madison to Alexander White (Aug. 24, 1789)
  46. ^ Letter from Roger Sherman to Simeon Baldwin (Aug. 22, 1789).

Holding U.S. citizens designated as enemy combatants by the Executive Branch have a right to challenge their detainment under the Due Process Clause. ... Holding Court membership Chief Justice: William Rehnquist Associate Justices: William J. Brennan, Byron White, Thurgood Marshall, Harry Blackmun, John Paul Stevens, Sandra Day OConnor, Antonin Scalia, Anthony Kennedy Case opinions Majority by: Rehnquist Joined by: White, Stevens, OConnor, Scalia and Kennedy Concurrence by: Blackmun Joined by: Brennan and... Alexander White (1738–September 19, 1804) was an American planter, lawyer, and politician from Frederick County, Virginia. ... Simeon Baldwin (December 14, 1761-May 26, 1851). ...

References

Kenji Yoshino is a professor and dean of intellectual life at Yale Law School. ... is the 15th day of the year in the Gregorian calendar. ... Year 2006 (MMVI) was a common year starting on Sunday of the Gregorian calendar. ...

External links


  Results from FactBites:
 
Due process - Wikipedia, the free encyclopedia (3913 words)
Due Process under the federal Constitution has additionally been interpreted as a restraint on the ways that legislatures may alter the law, although some judges over the years have objected to stretching the Due Process Clause beyond what was intended hundreds of years ago by the king and barons of the Magna Carta era.
Due process provides a minimum floor of 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.
Procedural due process places limits on the assertion of personal jurisdiction over a defendant to a lawsuit, limiting the locations where that defendant may be hailed into court.
due process: Definition, Synonyms and Much More From Answers.com (6229 words)
Substantive due process refers to a requirement that laws and regulations be related to a legitimate government interest (e.g., crime prevention) and not contain provisions that result in the unfair or arbitrary treatment of an individual.
The Due Process Clause of the Fifth Amendment, ratified in 1791, asserts that no person shall "be deprived of life, liberty, or property, without due process of law." This amendment restricts the powers of the federal government and applies only to actions by the federal government.
Thus, in the United States, substantive due process is concerned with such issues as freedom of speech and privacy, whereas procedural due process is concerned with provisions such as the right to adequate notice of a lawsuit, the right to be present during testimony, and the right to an attorney.
  More results at FactBites »

 
 

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