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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.

The Declare War Clause

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When the Constitution was originally written in 1787, the Antifederalists became fearful that the new Constitution would give too much power purely to the President, so the new government would resemble a monarchy more than the democratic system promised. The Antifederalists opposed the US Constitution because they believed that it did not balance powers. The Declare War Clause addressed the power the President had when addressing declarations of war against other nations.

The Declare War Clause was initially written with the purpose of limiting the President’s use of the USA’s military forces without Congress’s clear approval. The clause was a preventative clause to insure the President couldn’t abuse their powers. The approval of Congress was thought necessary for both formal declarations of war and for smaller uses of force in 1787. Modern Presidents have used military forces without formal consent from Congress. In 1950, President Truman ordered for US forces to enter Korea without approval from Congress. Constitutional scholars argued that, regardless of the original intention of the clause, there is now a modernized practice that allows the President considerable power to use military forces. Some constitutional scholars believe that Presidents have full authority when responding to an attack on the USA, while others think that the President controls offensive and defensive attacks. 

Generally, a majority agree that presidential actions pursuant to Congressional authorizations are constitutional, although there is debate regarding how broadly any particular authorization goes. Presidents have claimed authorization from informal congressional actions such as Congress’s failure to object to ongoing hostilities. This has caused controversy surrounding the clause and how effective or respected it is.

Some Presidents have decided independently on approving military action, while others stayed true to the Declare War Clause. Many scholars believe that no matter what the original purpose of this clause was, it has transformed into a more modern understanding that allows the President more independent power. Scholars believe that Presidents are allowed to initiate the use of military force without formally declaring war, but that Congress’s exclusive power is issuing the proclamation of war. In the 1863 “Prize Cases”, the Supreme Court stated that as a defensive measure, President Lincoln’s blockade following an attack was ambiguous regarding whether the authority for said blockade came from specific statutes of Congress. Court noted that the President couldn’t begin hostilities without Congress’s approval. Now courts avoid deciding cases based on limits on what types of disputes courts can resolve, including political questions. As a result, the precise implications of the Declare War Clause remain unanswered. Leaving room for debates and disputes. The “Prize Cases” show that the basics of this clause remained upheld because it was decided that the President couldn’t begin a war or use military sources without Congress’s approval.

In history, we have learned about the causes of revolutions in France and America, and the main cause for both revolutions was fear of a monarchy and the concentrated power that comes with a monarchy. The Declare War Clause guards a piece of power against being a single man’s decision and therefore aids in protecting the USA against a monarchy.

Oliver – The Fourth Amendment

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In Britain, a common practice was to put out “general warrants” that allowed law officials to search anyone’s house regardless of if there was cause. In the colonies, instruments similar to “general warrants” were used to ensure that the taxes placed on the colonies were enforced. Thus, when the bill of rights was drafted, the fourth amendment was made to address search and seizure by the government.

The commonly understood meaning of the fourth amendment is that it prohibits the government from apprehending or searching a person or their property without a warrant that is granted due to probable cause. There are many cases of dispute over the fourth amendment. However, the majority involve the idea of how technologies having been invented since this amendment was originally penned, factor into government monitoring of those technologies.

In 1967 the supreme court did rule that, in the Katz vs. The United States case, wiretapping of even public phones violated the fourth amendment. This is a direct example of a moral interpretation of the 4th amendment as the wiretapping of phones is not directly covered in the fourth amendment. While this may just be one case being referenced here, it does point to the idea that the fourth amendment is largely understood through moral interpretations instead of textual interpretations. However, while the debates about if wiretapping of phone calls violates the 4th amendment have died down, new debates regarding how the 4th amendment applies to the internet.

Legal scholar Orin Kerr makes the claim that only public internet activity (such as social media posts) should be able to be used without the warrant that would need to be required by the fourth amendment if it were to apply. He suggests that a balance must be obtained that mirrors that of the physical world where some data, which would already be apparent to all, can be obtained without a warrant but data that is not distributed by the investigated person should require one (similar to one’s private property). In opposition, Barry Friedman argues that, since, in searching for digital evidence, every action by the government must be targeted at a specific person, warrants should be required in all cases.

I personally agree with Orin Kerr because, since the information being put intentionally on the internet was deliberately put there for anyone to see, warrants should only be required for monitoring data not released to the public. Despite the disputes that can arise over it, I would not want to amend the fourth amendment as it lays the groundwork for ideas that can be applied in many different times. Finally, an area of study this year that is in stark contrast to this is the ideals of Tokugawa Japan. In Tokugawa Japan, not only were citizens encouraged to report on any changes discussed by people in their area but, also, in direct opposition with the idea of probable cause, citizens were told that logic could be violated to uphold the broader law. 



Kavi – The Sixth Amendment

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The Sixth Amendment in the Bill of Rights is the Right to Speedy Trial by Jury, Witnesses, Counsel. The creation of this amendment was motivated by the disorganization of the legal system in the United States in the 1770s and 80s. Prior to the Bill of Rights, there was no such thing as a public prosecutor, and trials were primarily shouting with neither side having a lawyer.

Additionally, juries were often biased, and familiar with both sides, resulting in biased decisions and injustice at trial. The Sixth Amendment states that in any and all criminal cases, the defendant has a right to an unbiased jury from the state in which the crime was committed, to interact with the witnesses to be used against them, to have legal counsel regardless of economic circumstances, and to have all of these in a timely manner.

Among other things, this amendment laid the groundwork for the modern legal system in the United States, indirectly founded the idea of public defenders, and helped establish legal procedures regarding evidence and witnesses. One of the most impactful debates regarding the Sixth Amendment was about the extent to which the stated rights apply. In Gideon vs Wainwright, a Supreme Court case from 1963, Clarence Gideon was charged with a felony in Florida State Court. After requesting representation and seeing his request denied, Mr. Gideon was convicted and sentenced to five years in prison.

Mr. Gideon filed a petition arguing that the state court violated his right to representation. This sparked a debate regarding whether or not the right to government funded representation for the defendant includes felonies. Ultimately, the Supreme Court ruled unanimously in favor of Mr. Gideon, setting the precedent that the aforementioned right does extend to felony defendants. However this decision also fueled further clarification on the responsibility of a court-appointed lawyer.

Most believed that the defender must provide an adequate defense for the defendant, and although the court ultimately ruled as such, action is rarely taken due to the subjective nature of the defense. The majority of the discussion on the Sixth Amendment was not heated debate, but about the need for further clarification for some of the more subjective portions of the amendment, and the previous decision is a prime example of this.

Ultimately, this amendment served its purpose. The justice system is no longer made up of shouting matches in place of trials, unrepresented defendants, and biased juries. This amendment also connects to several ideas of Enlightenment-era philosophers. In Montesquieu’s Spirit of the Laws, in addition to presenting the three branches of government which was later adopted by the United States, he provides one primary reason why a government of three branches may not be able to function: If the justice department is disorganized, and effectively controlled by either the executive or legislative branch. This would increase the risk of bias and unfair rulings. The Sixth Amendment seeks to address this issue by streamlining the trial process, and thus strengthening the justice department.