{"id":545,"date":"2023-06-02T19:58:07","date_gmt":"2023-06-02T19:58:07","guid":{"rendered":"https:\/\/blogs.dalton.org\/theconstitution\/amendment-5-due-process-clause\/"},"modified":"2023-06-02T19:58:45","modified_gmt":"2023-06-02T19:58:45","slug":"amendment-5-due-process-clause","status":"publish","type":"post","link":"https:\/\/blogs.dalton.org\/theconstitution\/amendment-5-due-process-clause\/","title":{"rendered":"Amendment 5 &#8211; Due Process Clause"},"content":{"rendered":"\n<h3 class=\"wp-block-heading\">Video<\/h3>\n\n\n\n<figure class=\"wp-block-embed is-type-video is-provider-youtube wp-block-embed-youtube wp-embed-aspect-16-9 wp-has-aspect-ratio\"><div class=\"wp-block-embed__wrapper\">\n<div class=\"entry-content-asset\"><iframe loading=\"lazy\" title=\"Amendment 5 - Due Process Clause\" width=\"600\" height=\"338\" src=\"https:\/\/www.youtube.com\/embed\/-BgdULwVAsQ?feature=oembed\" frameborder=\"0\" allow=\"accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture; web-share\" referrerpolicy=\"strict-origin-when-cross-origin\" allowfullscreen><\/iframe><\/div>\n<\/div><\/figure>\n\n\n\n<h3 class=\"wp-block-heading\">Written Component<\/h3>\n\n\n\n<p><p><span style=\"font-weight: 400\">The historical forces and motivation behind the Fifth Amendment\u2019s 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\u2019 judgment. The response may also be attributed to British violations of due process in regard to juries when America was a colony.<\/span><\/p>\n<p><span style=\"font-weight: 400\">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\u2019s 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.&nbsp;<\/span><\/p>\n<p><span style=\"font-weight: 400\">John C. Harrison utilizes an historical interpretation of the Constitution to argue that the clause is&nbsp; 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.&nbsp;<\/span><\/p>\n<p><span style=\"font-weight: 400\">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 <\/span><i><span style=\"font-weight: 400\">Johnson v. United States<\/span><\/i><span style=\"font-weight: 400\"> (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 \u201cviolent felony\u201d 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.&nbsp;<\/span><\/p>\n<p><span style=\"font-weight: 400\">Fairfax\u2019s argument is more persuasive for three reasons. Firstly, he uses a specific case as evidence, which Harrison does not. Secondly, Harrison\u2019s 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\u2019 close examination and heated debate of the Constitution. Thirdly, Harrison\u2019s 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.<\/span><\/p><\/p>\n","protected":false},"excerpt":{"rendered":"<p>The historical forces and motivation behind the Fifth Amendment\u2019s Due Process Clause largely consisted of fears of conviction without trial and the stripping of life, liberty, and property without proper processes&#8230;<\/p>\n","protected":false},"author":4837,"featured_media":513,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[645,21,102,644,79,95,99,646,648,647,96],"class_list":["post-545","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized","tag-645","tag-amendment","tag-amendment-5","tag-amendment-5-due-process-clause","tag-clause","tag-due","tag-due-process-clause","tag-lylah","tag-lylah-patel","tag-patel","tag-process"],"_links":{"self":[{"href":"https:\/\/blogs.dalton.org\/theconstitution\/wp-json\/wp\/v2\/posts\/545","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.dalton.org\/theconstitution\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.dalton.org\/theconstitution\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.dalton.org\/theconstitution\/wp-json\/wp\/v2\/users\/4837"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.dalton.org\/theconstitution\/wp-json\/wp\/v2\/comments?post=545"}],"version-history":[{"count":0,"href":"https:\/\/blogs.dalton.org\/theconstitution\/wp-json\/wp\/v2\/posts\/545\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.dalton.org\/theconstitution\/wp-json\/wp\/v2\/media\/513"}],"wp:attachment":[{"href":"https:\/\/blogs.dalton.org\/theconstitution\/wp-json\/wp\/v2\/media?parent=545"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.dalton.org\/theconstitution\/wp-json\/wp\/v2\/categories?post=545"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.dalton.org\/theconstitution\/wp-json\/wp\/v2\/tags?post=545"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}