Amendment V

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One of the most important rights guaranteed by the Bill of Rights comes from the fourth clause of the fifth amendment: the right to due process of law. The basis for this right dates back to the Magna Carta, a charter of english liberties granted by King John to his citizens in 1215. Clause 39 of this charter reads, “[n]o free man shall be arrested or imprisoned . . . except by lawful judgment of his peers or by the law of the land.”

The ideas of “lawful judgment” and “law of the land” evolved into the due process clause, which is the reiteration that the government must abide by the law and its process. However, it is important to note that the fifth amendment only applies to the federal government while the fourteenth amendment addresses due process in relation to state governments. Over time, two subdivisions of due process emerged: procedural and substantive.

The former addresses the fairness of the process by which the law is executed, an example being the right to fair notice. Most importantly, this right establishes the vagueness doctrine, which is the idea that the Court can deem a law not valid if it is unclear. The logic is that, if too vague, the law does not give people fair notice as to what it is stating. In contrast, substantive due process prevents the government from restricting certain natural rights that are not explicitly stated in the Constitution. This branch of due process has caused a lot of controversy.

Some believe it protects rights that should be guaranteed. Others think it has no Constitutional basis and impedes the government’s power as it controls what rights it can and cannot restrict. Regardless, the due process clause is a manifestation of several key principles of the Constitution. The first one it embodies is separation of powers as it gives sole jurisdiction of restricting the rights of life, liberty, and property to the judiciary.

The removal of these rights can only be done through the legal system, meaning the executive and legislative branches have no power in this regard. Additionally, the debates over substantive due process are reflective of the struggle to balance a strong national government with individual rights that has existed since debates between Federalists and Anti-Federalists during the drafting of the Constitution. While some believe substantive due process is not truly founded in the Constitution, it should be more widely seen as a legitimate interpretation.

The Constitution was written over two centuries ago, meaning it was written with a society that existed during that time, not the present one, in mind. As the times change and our social laws adapt, the interpretation of the Constitution must as well in order to ensure the continued protection of natural rights.

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