fifth

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. 

Kannon Hunter – Fifth Article

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The framers of the Constitution sought to create a government that would address the weaknesses of the Articles of Confederation, the first governing document of the United States. The Articles had proven ineffective in providing a strong central authority and lacked provisions for amending the document. The framers recognized the need for a more flexible and adaptable system that could withstand the test of time. This led to the inclusion of Article 5 in the Constitution, which provides a formal and organized mechanism for amending the Constitution.

The historical forces giving rise to Article 5 can be attributed to the failures of the Articles of Confederation, the influence of Enlightenment ideas, the experiences of the American Revolution, the desire to balance federal and state powers, and the need for a flexible system of governance. These factors shaped the framers’ vision for a constitution that could be amended to meet the evolving needs of the nation while preserving its core principles.

Article 5’s primary significance lies in its provision for amending the Constitution. It allows for the adaptation of the Constitution as societal needs and conditions change over time. This ensures that the Constitution remains relevant and avoids becoming rigid or outdated. However, there are divergent interpretations of Article 5, particularly regarding the power of Congress in the amendment process. Some interpretations emphasize Congress’s sole authority to propose amendments, while others argue that a convention of states can independently propose amendments.

While there isn’t a specific Supreme Court decision addressing this debate, the case of Dillon v. Gloss (1921) clarified that Congress can set deadlines for the ratification of proposed amendments. While some scholars have argued that Article 5 should be changed to allow for an easier path to proposing and ratifying constitutional amendments, the debated interpretation “How We Change The Constitution (Hint: It’s not by amending it)” by David A, Strauss is particularly persuasive because it gives direct examples of how many of the rules and areas covered by the Constitution have changed over time, even though the number of constitutional amendments has been limited and the process to propose and ratify an amendment is strict.

Strauss gives compelling examples of instances where the interpretation of the Constitution has changed, even though the specific text of the document has not. For example, even though the Equal Rights Amendment was never officially ratified, women continued to gain equality through other channels, like legal battles in the courts. Regarding the suggested adaptation of the amendment process, one argument proposes changing the requirement to two-thirds and three-fourths of the popular vote instead of relying on the House of Representatives and State Legislatures. An argument can be made that allowing the people to directly vote on changing the Constitution will lead to a more efficient path to enacting amendments.

However, it is important to consider the potential consequences of such a change. The general population may be easily influenced by political propaganda, and the media or may not fully understand the serious implications of more easily proposed and passed constitutional amendments. While the high thresholds for proposing and ratifying constitutional amendments impose challenges that have resulted in only 27 constitutional amendments having ever been instituted, they were put in place by the Founding Fathers for good reasons. Altering the process based solely on popular vote may not necessarily represent the long-term will and best interests of the nation.  

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.