due-process

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. 

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.

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.

Amendment V – The Due Process Clause

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The right to due process clause of the Fifth amendment in the Constitution guarantees that no person can be deprived of life, liberty, or property without undergoing due process of law. This clause originated in a desire to protect individuals from excessive governmental power and secure fundamental rights. American colonists were subjected to arbitrary arrests, unfair trials, and property seizures without a fair trial under British rule. Evidence of their discontent under British rule is evident in situations such as the Shaysite Grievances. The clause was a response to the oppressive practices of British rule and a reflection of the belief that no one should be forced to incriminate themselves or suffer without proper legal procedures.

 

The clause states that individuals have the right to a fair trial in a court of law, a defense attorney, and freedom from self-incrimination. This is known as procedural due process. The concept of “life, liberty, and property” in the clause connects to our discussions of ideas that originated from the Enlightenment. It had many thinkers who argued that people have unalienable rights, including John Locke, responsible for “The Second Treatise of Government”, where the quote “life, liberty, and possession” can be seen. He argued that these were basic human rights, and his words heavily influenced colonists to rebel against British rule. They were thus integrated into the documents that were made when the nation was founded, such as the Constitution.

 

However, there has been controversy to what extent the justice department can exercise the overturning of laws. This is where a term called “substantive due process” arises. It is a legal argument that attempts to interpret how much the due process clause of the Constitution protects certain fundamental rights that are not explicitly listed in the text. The clause implies that the government cannot infringe on the rights of life, liberty, or property, even if no specific provision explicitly defines those terms. They recognize that individuals possess inherent rights that are fundamental to their liberty, such as the right to privacy, bodily autonomy, and freedom of expression. However, it has been a subject of controversy, since some argue that it grants too little power to the judiciary branch. Others argue that substantive due process is essential in ensuring that the government does not restrict fundamental rights. The divergent interpretations revolve around the extent of due process protections, particularly concerning balance between individual rights and societal interests. 

 

A case that is illustrative of the tensions around substantive due process is Roe V Wade. Recently, the case has been a controversial discussion regarding the right to abortion. This is where substantive due process becomes a significant basis for the argument that there is a fundamental right to privacy that the government should not have the authority to restrict.  In 1973, it was decided that privacy encompasses a woman’s right to have an abortion based on these principles. The case has arisen again after the ruling was overturned, but this clause is still a justification that women have a right to bodily autonomy. 

 

At present, this clause does not require amending, because it ensures that everyone is granted a fair trial with an impartial jury and a defense attorney. Altering a clause that has historically protected so many from having their rights limited by excessive governmental control could be detrimental to the concept of the Fifth amendment itself. 

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.