2. Due Process
- I chose the Fifth Amendment right to due process for this assignment.
- Due Process is a clause present in the Fifth Amendment of the Bill of Rights. Though,
the influence of this right extends beyond its context within the 5th Amendment. The
due process clause is reiterated in Section 1 of the 14th Amendment. The fact that it
is enumerated twice in the United States Constitution speaks to its importance.
- While attempting to define due process, I stated in a previous assignment:
"The right to due process of law states that the burden of proof rests on
the government in establishing guilt, protecting the individual from
having his/her life, liberty, or property stripped away at random and
without notice or just cause." Essentially, this means that the government
cannot take away my rights without a good reason and the courts must
testify to the validity of that reason. That's why due process is important
to me. As an American citizen, I have a duty to take an interest in my
government and my protection under the government in the form of the
individual rights and liberties afforded to me in any situation (even ones
I may never find myself in).
- The Constitution contains a system of checks and balances; knowledge is
power, and simply by being aware of constitutional rights, the individual
is given a great power or a "check" over the government.
- Due process upholds the standard that guilt must be proven and not
merely assumed. Assumptions of guilt only lead to the death of innocence
(often literally, as history tells).
- Due process has a long history. The development of the due process concept
dates back to 13th century England, when it was first mentioned in the
"No free man shall be taken or imprisoned or disseised 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." - Article 39, Magna Carta of 1215
- The clause itself, and the actual words "due process of law", appeared in a
later revision of the Magna Carta.
"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.” - Article
29, Magna Carta 1354
- The Framers of the Constitution of the United States adopted the idea of
due process, incorporating it into the Bill of Rights.
- The Due Process Clause is an integral part of both the Fifth and Fourteenth
Amendments to the United States Constitution.
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in
the militia, when in actual service in time of war or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for
public use, without just compensation."
Fourteenth Amendment, Section 1:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they reside. No state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United States;
nor shall any state deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal protection of
6. Text (Cont.)
- The text of the clause varies little between its two appearances. The difference is small
but has a significant implication. The clause as a part of the 5th Amendment states
that the government cannot take away its citizens' rights "without due process of
law"; the clause as a part of the 14th Amendment specifies that this due process rule
applies to more than just the federal government: state governments are also not
permitted to strip citizens of their rights unjustly.The purpose of the 14th Amendment
clause is to ensure the application of the Bill of Rights, and specifically due process,
at the state level.
Due Process Clause of the Fifth Amendment:
"No person shall be... deprived of life, liberty, or property, without due process of law."
Due Process Clause of the Fourteenth Amendment, Section 1:
"No state shall... deprive any person of life, liberty, or property, without due process of
7. History: Supreme Court
- Several landmark Supreme Court cases can be linked to disputes involving
the due process clause. All of the following cases expanded upon or
further defined due process.
Gitlow v. New York (1925)
Ruling (in favor of Gitlow): First Amendment rights are covered under the
due process clause via "incorporation", which is when provisions of the
Bill of Rights are made to apply to state governments. This was a key
case in establishing the scope of the due process clause.
Gideon v. Wainwright (1963)
Ruling (in favor of Gideon): The defendant has the right to an attorney,
regardless of his financial ability to pay for one. The Sixth Amendment
right to an attorney applies to state governments (incorporation) under
the due process clause of the 14th Amendment.
Goss v. Lopez (1975)
Ruling (in favor of Lopez): A student cannot be suspended from school
without a hearing. The failure to conduct a hearing prior to or
immediately following a suspension constitutes a violation of the due
process clause of the 14th Amendment.
8. History: Supreme Court
Roe v. Wade (1973)
Ruling (in favor of Roe): Women cannot be denied the right to have an abortion under
the due process clause and the right to privacy. A state cannot deprive any woman
of this right.
O'Connor v. Donaldson (1975)
Ruling (in favor of Donaldson): Confining an individual that poses no threat to himself or
society is a deprivation of liberty without just cause or due process and is therefore
- The idea of due process was received quite favorably when initially implemented into
United States law. Its inclusion in the Constitution was welcomed, for many at the
time felt that the Constitution was lacking in the citizens' rights and liberties
- What would America be like without due process? Put simply: potentially a very scary
place. Due process is essential for the prevention of governmental corruption,
imperative to the function of our nation as a democracy, and necessary for the
protection of the individual. That's why the Framers included the right to due process
in the Bill of Rights.
- Still, due process is perhaps one of the most controversial clauses in the Constitution.
There exists a great deal of debate over its extent and application.
- This debate mostly regards the way it is defined and/or employed. The Procedural vs.
Substantive argument is where the majority of the controversy arises, not in the
actual concept of due process itself.
10. Impact (Cont.)
- Due process can be broken down into Substantive and Procedural components. The
following quote expounds on the difference between substantive due process and
procedural due process:
"Substantive Law creates, defines, and regulates rights, whereas procedural law
enforces those rights or seeks redress for their violation. 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 rights to be present during testimony, and
the right to an attorney."
Substantive Due Procedural Due
11. Impact (Cont.)
- A Stanford University article on Due Process attempts to explain both viewpoints:
"Critics of Substantive Due Process claim that it is... a pure usurpation of power by the
Court... [they] claim that "Substantive Due Process" is an oxymoron and that [it does
not] assure anything but procedural rights. They say that when the Court uses
judicial review to enforce these pseudo-Constitutional rights they are stealing the
legitimate law-making power from the state legislatures."
- Essentially, those against substantive due process are concerned about the power of
the Supreme Court and the scope of judicial interpretation.
"Supporters of Substantive Due Process... point to its long history and its dynamic ability
to defend basic human rights from infringement by the government. They argue that
Substantive Due Process provides comprehensive nation-wide protection for all our
most cherished rights, which might otherwise be at the mercy of state governments.
They argue that the doctrine is a simple recognition that no procedure can be just if it
is being used to unjustly deprive a person of his basic human liberties and that the
Due Process Clause was intentionally written in broad terms to give the Court
flexibility in interpreting it."
- In other words, those in support of substantive due process claim that is necessary
and was intended to be included in the Constitution to protect the rights of citizens.
12. Impact (Cont.)
- Justice Byron White commented on his disapproval of substantive due process in his
opinion on the case Bowers v. Hardwick (1986):
"It is true that, despite the language of the Due Process Clauses of the Fifth and
Fourteenth Amendments, which appears to focus only on the processes by which
life, liberty, or property is taken, the cases... in which those Clauses have been
interpreted to have substantive content... Among such cases are those recognizing
rights that have little or no textual support in the constitutional language."
- Here, Justice White asserts that the text of the Due Process clauses is strictly
procedural in nature, but acknowledges that previous cases have been decided
using substantive interpretations.
"Nor are we inclined to take a more expansive view of our authority to discover new
fundamental rights imbedded in the Due Process Clause. The Court is most
vulnerable and comes nearest to illegitimacy when it deals with judge-made
constitutional law having little or no cognizable roots in the language or design of the
Constitution...There should be... great resistance to expand the substantive reach of
those Clauses, particularly if it requires redefining the category of rights deemed to
be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority
to govern the country without express constitutional authority."