Sophie Saxl- The Fifth Amendment Due Process Clause

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Sophie Saxl

Constitution Project Write- Up: The Due Process Clause

6/2/23

 

The Magna Carta, a charter of rights issued in 1215 by King John of England, introduces the concept of due process in its 39th chapter, stating that no free man should be taken under arrest without a fair judgment by his peers. Due process sets an important standard of fairness and a just protection of all parties in legal proceedings. The Fifth Amendment Due Process Clause in the U.S. Constitution ensures the right to a fair, thorough, and lawfully judged legal and administrative process to every person in court.

There are two aspects of the Due Process Clause: procedural due process and substantive due process. Procedural due process is the right to decisions involving the government being made through a fair and impartial process which includes fair notice, the opportunity to be heard and a fair presentation and examination of evidence for all parties. It is widely supported and uncontroversial. Substantive due process is much more debated, as it puts more limits on governmental authority, allowing courts to protect certain fundamental rights relating to “life, liberty and property,” as the Fifth Amendment states. Supporters of the theory of substantive due process often claim that it is the best way to protect fundamental human rights, including those not specifically mentioned in the Constitution. Legal scholars against the theory argue that the concept upsets the balance of power specifically outlined between the branches of the U.S. government, giving an unwarranted amount of power to the courts. This argument also asserts that substantive due process would give courts unlimited power of review over what rights are to be protected. This argument is based on the idea that the only rights protected are those stated in the Constitution. 

Due process is frequently brought up in Supreme Court cases, with one early example being in the extremely controversial Lochner vs. New York. In this case, a bakery owner, Joseph Lochner, was charged with violating the Bakeshop Act, a law setting a maximum of 10 hours per day and 60 hours per week allowed to be worked by bakery employees. Lochner argued that due process should be interpreted to contain freedom of contract covered by substantive due process. Even though Lochner referenced the Due Process Clause applying to states in the Fourteenth Amendment, he uses the same conceptual argument that applies to the Fifth Amendment. While Lochner was later overturned, substantive due process has continued to be debated in privacy cases.

The Due Process Clause is a manifestation of a crucial enlightenment ideal: natural rights. John Locke’s ideas on natural rights hold a close connection to the Due Process Clause, down to the specific wording. In his “Two Treatises of Civil Government,” Locke asserts that “no one ought to harm another in his life, health, liberty, or possessions,” using nearly identical wording to the clause itself: “life, liberty, and property.”

The argument around substantive due process draws back to a central point of debate in interpreting the Constitution: should judgment be based on the intent of the framers, or on the relevance today? I believe that the Constitution can only be read as a document made to change with time, because the Constitution is adaptable to different times, as proven by the built-in amendment process outlined in the Constitution.

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