due-process-clause

George Lipton – Due Process Clause

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The idea of due process had been around for a long time before the U.S. Constitution was ratified, even appearing in Britain’s Magna Carta in 1215. However, the U.S. throughout its history has made it more specified and strengthened its direct ability to protect people accused of crimes. The intention in both of those documents was to promise that the governmental powers would not infringe on the fundamental rights of life, liberty, and the right to property without a “fair trial.”

The due process clause is one of many assurances that the federal government would not be too powerful which was a major concern for the new country. The federal government cannot punish or take anything away from someone without a sentence that came from a trial. This clause also is a form of checks and balances over the executive and legislative branches when they create and enforce laws because within a trial, proving guilt is a process that is channeled through the judicial system. Throughout the country’s history, the due process clause has been used as a way to keep the government from acting outside of the law.

The term has now become interchangeable with the right to a fair trial, despite historically having broader implications. This leads to it often being confused with the 14th Amendment, which calls for equal protection under state laws rather than federal laws, also mentioning due process. The vagueness of the language of the amendment, the 5th amendment has been specified by numerous court decisions. One of the most famous ones is Miranda v. Arizona, a trial about self-incrimination without warning, which led to the creation of Miranda Rights. Another decision is Gideon v Wainwright, a case establishing the right to an attorney as a key part of due process. Over time the amendment has also created a constitutional rule called the vagueness doctrine which forces laws to be straightforward in their language in order to be enforced.

Finally, the concept of substantive due process, allows the supreme court to overturn laws that restrict citizens’ constitutional rights as a part of judicial review. Without due process of law, the government can arrest whoever they want without a proper trial which in a revolutionary context, could lead to a tyrannical government. Due process is a building block of the bigger concepts of the American Revolution seeking a government that fairly represented the people. This also relates back to Rousseau’s social contract because this puts a definition on the trade-off between freedom and security or the people and government. Due process is one of the many amendments that was related back to the argument over slavery because it is the legal aspect of abolition: to be enslaved is wrongful imprisonment without due process. This is why due process needed to be re-channeled in the 14th Amendment because states now had to guarantee due process in their courts as well. 

Amendment 5 – Due Process Clause

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The historical forces and motivation behind the Fifth Amendment’s Due Process Clause largely consisted of fears of conviction without trial and the stripping of life, liberty, and property without proper processes, and a desire to prevent such events. It was largely derived from the Magna Carta, a statement of rights issued in 11th Century England that ensured no citizen would be imprisoned or arrested unless it was in accordance with a law or by means of peers’ judgment. The response may also be attributed to British violations of due process in regard to juries when America was a colony.

The common interpretation of the Due Process Clause is that it ensures the government abides by the laws. The clause aims to ensure no person’s life, liberty, and property are struck without the due process of law. It also includes procedural due process, which refers to procedures surrounding the processes of law, and has been interpreted to refer to substantive due process, which sets substantive limits to prevent the government from removing certain freedoms. 

John C. Harrison utilizes an historical interpretation of the Constitution to argue that the clause is  a reiteration of the separation of powers and it lacks support for substantive due process due to the vagueness of the language. It is a statement that only the Courts are equipped to deprive life, liberty, and property, not the Executive or Legislative Branches. He also believes the clause reiterates the provision that the government must follow the law, similarly to how the Magna Carta provides that the King must follow the laws. 

Roger A. Fairfax believes that the clause addresses both the availability and equity of procedures and informs what the government may necessitate or forbid. His main argument centers around the vagueness doctrine of the clause as an important, but overlooked asset in addition to substantive and procedural due process. For evidence, he cites the Johnson v. United States (2015) Supreme Court decision to illustrate the power of the vagueness doctrine. Given that fair notice is required by means of the Due Process Clause, the Court concluded that the term “violent felony” did not provide ample fair notice to all defendants as to sentences they may face due to the vagueness of the provision. At the end of the essay, he argues that the prohibition of vagueness places a lid on governmental action, which is exactly what substantive due process strives to do. 

Fairfax’s argument is more persuasive for three reasons. Firstly, he uses a specific case as evidence, which Harrison does not. Secondly, Harrison’s argument that the clause is a part of the separation of powers is ineffective due to the fact that it would be redundant given other measures in the Constitution. This is not likely given the Framers’ close examination and heated debate of the Constitution. Thirdly, Harrison’s argument that the clause does not support substantive due process due to its vagueness is countered by the premise of fair notice. While not explicitly stated, the clause is widely understood to include fair notice, which leads one to apply the same principle to substantive due process despite the lack of explicit statement.

Mehela Noel: Amendment V

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The Fifth Amendment includes double jeopardy, grand jury, self-incrimination, and eminent domain. The Due Process Clause of Amendment V claims that no individual shall be deprived of life, liberty, or property without due process. Due process is still heavily used in courts to this day. There are two types of due process seen today in court; Procedural and Substantive Due Process. Both Procedural and Substantive Due Process are commonly seen in court cases affecting individuals of their life, liberty, and property. 

Procedural Due Process is the legal procedure that must be followed when governments are depriving individuals of their life, liberty, or property. Procedural Due Process is still seen today not only in court, but daily through Miranda Rights. Miranda Rights are stated when individuals are in police custody. These rights imply the right to remain silent, the right to an attorney, and the right to be appointed an attorney. Miranda Rights are a representation of Procedural Due Process because it is a requirement that happens before they are in the custody of the police, which is a legal procedure that must be followed before individuals are deprived of their life, liberty, and property.

The roots of Miranda Rights date back to March 2, 1963, when an 18-year-old woman from Phoenix filed a police report that she was kidnapped and taken to a desert, then sexually assaulted. Ernesto Miranda––the defendant of this case––confessed to kidnapping and rape during the police’s interrogation. However, prior to Miranda’s confession, the police did not inform him of his right to counsel and his right to refrain from self-incrimination. The detectives and officers did not acknowledge that Miranda had that right, therefore he was able to recant his confession, and not have it used against him in court. Ernesto Miranda’s confession was just one of many “forced confessions” during this time period. The Supreme Court determined that without certain warnings in interrogation, including the right to remain silent and the right to counsel, statements that are made during a custodial interrogation, are inadmissible during a trial.

Substantive Due Process focuses on liberty and whether there are fundamental rights implied when life, liberty, and property are being taken. Substantive Due Process is still a very prominent topic, especially in the landmark Supreme Court case, Roe v Wade. This case began when Jane Roe, a pregnant single woman in Texas, wanted to get an abortion. She was unable to get an abortion due to Articles 1191-1194 in the Texas Penal Code, denying her ability unless it was a deathly matter. Roe challenged this, stating that the Penal Code was unconstitutional, and a violation of her fundamental rights, referring to the Substantive Due Process Clause. This argument led to massive debate, and under Roe, the Courts rejected the claim that a woman is not able to terminate her pregnancy (this was later overturned in 2022). This Supreme Court case shows the importance and connection the Due Process Clause still has to the modern day.

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.