Talk:Due process

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this is a article about due process! —Preceding unsigned comment added by 170.185.214.19 (talk) 15:08, 15 October 2007 (UTC)

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Contents

[edit] Opening comments

Looks like this page has been comfortably settled for a while now, but I just added a good chunk of information about the incorporation doctrine. Does anyone else feel that it might merit its own page, with the substantive due process section merely mentioning and linking to it? In truth, substantive due process is generally associated with the Lochner era decisions that placed severe restrictions on laws regulating economic activity, or, more recently, the right to privacy jurisprudence. Incorporation, while it does technically fall under the auspices of substantive due process, is a broad enough topic that it might deserve its own article, even if it's a far smaller one than this main article. Hell, it might even make sense to break this page down into two articles: substantive and procedural due process. Each topic covers a vast area of constitutional law, though they obviously do share the same two constitutional provisions as textual anchors. I'm curious about what others think about splitting them off--are there concerns that, by breaking down and elaborating on many specialized areas of American constitutional law, we'd be exhibiting an American bias? SS451 02:32, 25 Aug 2004 (UTC)

I totally agree that the "incorporation" section should be moved. Conveniently, an article named Incorporation (Bill of Rights) already exists. I would very much like to move much of the text of the incorporation section to that article. What I shall do, so as to avoid angering anyone, is the following. Right now, I'm going to copy most of the incorporation section text and simply paste it into the separate incorporation article. In about a day, unless I hear objections, I shall erase most of the incorporation section, but let a highly visible link to the incorporation article remain. Best, Hydriotaphia 03:48, Dec 26, 2004 (UTC)

I have erased the last paragraph of the incorporation section, and placed an edited form thereof in the Elk Grove Unified School District v. Newdow article, where it belonged due to its subject matter. Hydriotaphia 06:27, Dec 26, 2004 (UTC)

I just did some reorganizing, to clarify some of the statements about incorporation, as well as to de-Americanize the article. I'm still not satisfied with the relationship of incorporation to substantive due process as described--maybe there's someone out there more familiar with the case history? I'm tempted just to throw the whole incorporation section under substantive due process, though I'm reluctant to consider it just a simple application of that concept.

Re: exceptions to incorporation, to my knowledge, the only two provisions of the Bill of Rights that the Supreme Court has explicitly said are NOT incorporated are the grand jury indictment and civil jury provisions. I don't know about the Third, but the Second and the Eight on bails/fines the Court simply hasn't ruled definitively on, though some justices (like O'Connor) and some Circuits on the bails/fines provision have said that it is/should be incorporated. We just don't have an actual Supreme Court majority holding yet. The Court has said that due process does restrict "irrational" fines in some way (even civil jury awards), but it did so without saying that this was coextensive with the Eighth Amendment protection.

I wonder if the United States due process law should be given its own section, under Due process (United States) and Due Process Clause, turning this article into a general overview of due process internationally, if that's possible. I know that the concept pops up in international law, but I don't know if other nations actually use the same term. I hope someone can flesh this out to truly internationalize the article, maybe with an overview of the differences and similarities of applications across the world. Good luck! --Postdlf 12 January 2004, 18:19 PM (EST)

Also, we need a discussion of the concepts of "notice" and "hearing" under procedural due process. --Postdlf

Hi, I did some fine-tuning of this "due process" entry, for example by inserting quotes from Magna Carta and from James Madison. --Ahyman@aol.com, 21 April 2004.

The ruling in Lawrence v. Texas was certainly broad enough to cover private sexual acts whether straight or gays, but the case itself dealt with a law that criminalized only homosexual sodomy. Just calling it a "sodomy" case is misleading as well, and was part of the mistake made in Bowers v. Hardwick according to the Lawrence majority, who thought Bowers trivialized the liberty at issue. They invalidated the anti-sodomy law because it infringed what they saw as a liberty right to intimate sexual conduct between consenting adults in private. That's why it's improper to characterize it as just a "homosexual sodomy" case, or even less properly as a "heterosexual and homosexual sodomy" case.

I'm not (yet) going to undo the recent changes in language regarding the controversiality of substantive due process, though I think they are misframing the present situation. There is not a Justice on the bench of the Supreme Court today who opposes substantive due process in its entirety...there is no opposition on the Court (and very little off) as to whether the Clause imposes substantive restraints on legislators. The sole question is what restraints—what traditions do we look to in order to decide what unenumerated rights the Constitution protects as part of "liberty." Read Scalia's dissent in Lawrence and where the debate is at present will become clear. If anyone can contradict this, please do...it's a difficult area of law, but I think that I am right on this. Incorporation especially is accepted without comment in Court opinion after opinion.

One question I have is whether Incorporation is properly seen conceptually as part of substantive due process, or whether it is more properly viewed as an entirely separate doctrine. The two seem to merge in my mind, and that is how I have written about it in this article, though I retain doubts. Postdlf 4:21 22 Apr 2004 (UTC)

I think this discussion of due process is mostly on track. Postdlf has done a good job.

Regarding "substantive due process," Justices Scalia and Thomas are pretty clearly on record stating that it is an "oxymoron." See United States v. Carlton, 512 U.S. 26, 39-40 (1994) (Scalia, J., concurring in the judgment, joined by Thomas, J.). They have argued that there is no such thing as substantive due process, but that procedural due process is okay. Even in the recent Lawrence case, Scalia's dissent argued that "The Fourteenth Amendment expressly allows States to deprive their citizens of 'liberty,' so long as 'due process of law' is provided."

Personally, I believe that the framers of the original Constitution did not intend to draw this distinction between substantive and procedural due process, although they certainly employed the distinction in other contexts (e.g. in the Judiciary Act of 1789). For them, the word "process" was a technical term, and so I don't think Scalia and Thomas are 100% right to call substantive due process an "oxymoron." However, the position of Scalia and Thomas is not unprecedented on the Supreme Court, and it appears that some of the Framers of the 14th Amendment probably had the same misunderstanding about "process" that Scalia and Thomas have. My point is not that the Wikipedia article about Due Process should endorse one viewpoint or another, but rather that it should recognize the continuing difference of opinion on this matter.

Incidentally, my personal view is that Justice Hugo Black was very close to the truth about all of this, when he wrote that "the only correct meaning of that phrase [due process of law] is that our Government must proceed according to the 'law of the land;' that is, according to written constitutional and statutory provisions as interpreted by court decisions." In Re Winship, 397 U.S. 358, 382 (1970)( Black, J., dissenting). This is basically what Magna Carta said, and I think this is what the framers of the 5th Amendment intended. Due process was mainly (though not eXclusively) a limitation on the executive and judicial branches, and the Court introduced both procedural and substantive due process to limit Congress pretty much sua sponte (i.e. on their own initiative).

The slight modifications I've made here and there in the article make the article a bit more neutral about all these issues, without taking any positions. I hope that's helpful. By the way, I'm glad that the Privileges and Immunities Clause was mentioned in this article, because many scholars believe that incorporation is achieved by that clause instead of by the due process clause. Email me if you like, to ahyman@aol.com. I'm user Ferrylodge, and today is April 28, 2004.

What Scalia really argued in his dissent in Lawrence (and Thomas and Rehnquist who joined it) was that substantive due process protected only fundamental liberty, not just "liberty" period. He doesn't quarrel with unennumerated rights, or with substantive due process protecting fundamental liberty. At the very least, he has impliedly accepted that it exists as a valid and continuing constitutional doctrine, though the other Justices apply it in circumstances that he wouldn't. Here's the key passage from Scalia's Lawrence dissent making this clear (which follows right after the previously posted quote):

Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection--that is, rights which are "'deeply rooted in this Nation's history and tradition,'". All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest. (footnotes and citations omitted)

Footnote 3 of his dissent shows that even Scalia believes that rational basis review may strike other laws that don't violate fundamental liberty interests, but are simply insufficiently justified.

The Court is quite right that "history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." An asserted "fundamental liberty interest" must not only be "deeply rooted in this Nation's history and tradition," but it must also be "implicit in the concept of ordered liberty," so that "neither liberty nor justice would exist if [it] were sacrificed." Moreover, liberty interests unsupported by history and tradition, though not deserving of "heightened scrutiny," are still protected from state laws that are not rationally related to any legitimate state interest. (citations omitted)

As I originally wrote in this article, the only disagreement among the present Court and among the vast majority of present legal scholars is where to apply substantive protections under due process, not if.

I'm not going to undo your changes right now—I hope that reconsidering this, you'll find a better way to state the issue yourself, because the current language overstates the disagreement. If not, I'll tackle this article again later when finals are over...  ; ) Postdlf 3:54 29 Apr 2004 (UTC)

Ferrylodge, hopefully we'll both be happy with the last edit I did to the final paragraph. You're right about Scalia and Thomas believing that substantive due process is a bad doctrine, but they have taken more to arguing that the Court is misapplying it rather than stubbornly asserting every time the issue arises that the doctrine is invalid (though I think Scalia's continued use of quotation marks around "substantive due process" are intended scornfully). I think my last changes reflect this pretty well. So we were both right, basically. Don't you love when that happens? Postdlf 14:23 29 Apr 2004 (UTC)


I have not reviewed Postdlf's most recent changes yet, because they occurred while I was writing this response . . . .

As Postdlf has requested, I have reconsidered the degree to which sitting Supreme Court Justices like Scalia and Thomas accept the doctrine called "substantive due process." As I noted previously, I personally disagree with Scalia and Thomas that the word "process" was intended to be a purely procedural term. However, I still submit that Scalia and Thomas do hold this view (as do a large number of legal scholars), judging from their own judicial opinions.

I mentioned two cases, in this regard: Carlton and Lawrence, although there are other pertinent cases as well. Postdlf has partly addressed Lawrence, but not Carlton. Here's what Scalia and Thomas said in Carlton:

"I believe that the Due Process Clause guarantees no substantive rights, but only (as it says) process."

They also wrote:

"If I thought that 'substantive due process' were a constitutional right rather than an oxymoron, I would think it violated [in this case]."

So there really is no ambiguity about how Scalia and Thomas felt about the doctrine of substantive due process. Now, it could conceivably be that Scalia and Thomas have since changed their minds, or will change their minds in the future. I am not ruling this out. However, the quotes presented by Postdlf are not persuasive that this has occurred.

Turning to Lawrence, Postdlf provides the following quote from Scalia's dissent:

"Our opinions applying the doctrine known as 'substantive due process' hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called 'heightened scrutiny' protection--that is, rights which are 'deeply rooted in this Nation's history and tradition,'. All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest. (footnotes and citations omitted)"

Note the first two words: "Our opinions..." Scalia is arguing that the Court majority is not being consistent with its previous opinions. He is NOT saying that he agrees with those previous opinions. Postdlf also quotes Scalia's footnote 3, but please observe that that footnote occurs in the very paragraph that Postdlf quoted above. (Scalia put footnote 3 immediately before the last sentence that begins with "All other liberty interests . . ."). So Scalia is saying how the Court has rightly construed its previous opinions, and how it has wrongly construed its previous opinions, and is not saying that he agrees with those previous opinions. In the same Lawrence dissent, Scalia took the same approach to stare decisis, chastising the Court's inconsistency in not adhering to the theory of stare decisis that the Court had announced in its Casey decision, even though Scalia deplores that theory.

Please note that I'm not trying to advance any personal opinions here. Just trying to be accurate. Even if Scalia and Thomas woke up this morning and decided to repudiate the view that the word "process" refers only to procedure, still a large segment of scholars do believe that. I don't, but they do.

Certainly, this was a common view when the 14th Amendment was written, and even Abaraham Lincoln shared that view. See 4 COMPLETE WORKS OF ABRAHAM LINCOLN 211 (John G. Nicolay & John Hay eds., 1894) (1858) (“The Constitution itself impliedly admits that a person may be deprived of property by 'due process of law'”). Also see JOHN BOUVIER, A LAW DICTIONARY ADAPTED TO THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AND OF THE SEVERAL STATES OF THE AMERICAN UNION (6th ed. 1856) (defining “process” as the “means or method of accomplishing a thing”).

I will now go and take a look at Postdlf's most recent changes which occurred while I was writing this response, although it might have been more efficient to hash this out in discussion first. Ferrylodge, April 29.

OK, I have just edited the last sentence and a half so that they read as follows:

"even they have joined Court opinions that employ the doctrine, and have in their dissents taken more to arguing over how substantive due process should be employed based on Court precedent. In other words, the main debate in recent decades within the Court over substantive due process has been more about where to apply it, and less about whether it should be applied at all."

I'm somewhat confident that this is correct, but I'd still appreciate if Postdlf would please cite me a case or two where Scalia and Thomas "joined Court opinions that employ the doctrine." Keep in mind that there's a difference between joining an opinion and concurring in a result. Cheers. Ferrylodge, April 29.

Washington v. Glucksberg, for one. The case did not extend the protections of the doctrine to the conduct at issue (assisted suicide), but Rehnquist's majority opinion (at part II) describes substantive due process as a fact under the Due Process Clause, without a hint of criticism, in explaining why the liberty at issue was not fundamental enough to be covered.

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.

521 U.S. 702, 719-20 (1997) (citations and footnotes omitted). Scalia and Thomas both joined Rehnquist's opinion without issuing separate concurrences. Now something could be made of the fact that they merely joined an opinion that refused to extend a substantive due process protection, but the Court declined protection by applying the doctrine and defining its limits, without any question as to the doctrine's validity (as is clear from Rehnquist's very affirmative language, admittedly different from Scalia's Lawrence dissent).

I agree that Scalia and Thomas did not likely have a change of heart on this issue. However, they've definitely changed their stance by not raising a frontal assault on substantive due process every time it comes up, finding it more effective to use it to limit it rather than just deny it. The ground they've given on this has unavoidably strengthened the doctrine by their implicit acceptance and has effectively removed the debate over its existence from Court opinions (compare it with Brennan and Marshall's unyielding insistence that the death penalty was unconstitutional in every death penalty case towards the latter part of their tenures).

I'm fine with the last changes you made to the article, so we're in agreement on the current language of the last paragraph. It's good to see another legal thinker on here. Postdlf 7:14 29 Apr 2004 (UTC)

Your quote from Glucksberg is as follows:

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.

The third and fourth sentences merely describe the Court's previous cases. The first sentence is completely uncontroversial, because everyone agrees that the Due Process Clause forbids the executive branch from doing stuff procedurally or substantively if it is forbidden to do so by law, even if the liberty threatened is more subtle than liberty from physical restraint (all of this is approximately the original meaning from Magna Carta which has nothing to do with procedural due process or substantive due process). That leaves the second sentence of your Glucksberg quote: "The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests." Seems to me that this just clarifies the previous statement that "liberty" means more than liberty from physical restraint.

So, I'm very dubious that Scalia and Thomas have joined Court opinions that employ the doctrine, except in the technical sense that the doctrine may have been employed in dicta. I have slightly edited the paragraph in question, so that it says Scalia and Thomas have joined opinions that "do not challenge" substantive due process instead of opinions that "employ" substantive due process. However, I'm open to any further case cites that show Scalia and Thomas have voted to employ this doctrine. Ferrylodge, April 29.

That's fine...I was myself thinking that "employ" was a poor choice of words. I think "do not challenge" may be too far in the opposite direction (maybe "recognize"?), and I don't think Glucksberg's use of it was merely dicta, but your change is good enough for me in the current context of the paragraph. Postdlf 2:56 30 Apr 2004 (UTC)

I've also deleted the assertion that Griswold v. Connecticut was a substantive due process case. I had not previously noticed this assertion. Actually, Griswold is more accurately described as a case involving "penumbras" created by the Bill of Rights. This "penumbra" concept was employed in the Griswold opinion by its author, Justice William O. Douglas, and he based it on things like the Fourth Amendment's guarantee of privacy from unreasonable searches and seizures. Douglas returned to this subject in his opinion concurring with Roe v. Wade (in Roe's companion case of Doe v. Bolton):

"There are, of course, those who have believed that the reach of due process in the Fourteenth Amendment included all of the Bill of Rights but went further. Such was the view of Mr. Justice Murphy and Mr. Justice Rutledge. See Adamson v. California, 332 U.S. 46, 123, 124 (dissenting opinion). Perhaps they were right; but it is a bridge that neither I nor those who joined the Court's opinion in Griswold crossed."

Douglas did not view Griswold as doing any more than applying the Bill of Rights against the states. Ferrylodge, April 29

You're correct about Douglas's opinion, but the concurrences present a problem with strictly limiting Griswold to just that line of reasoning. White's concurrence and Goldberg's (which was joined by Brennan and Warren) both explicitly invoked substantive due process (with Goldberg also relying heavily on the Ninth Amendment). How the Court has subsequently addressed it is problematic as well. I could be wrong, but I don't believe that the "penumbra" theory has been used by the Court since—I believe Roe referred to it, but only in saying that either penumbras or substantive due process could be used to find the relevant privacy interest, and subsequent opinions have just used substantive due process as the basis. Washington v. Glucksberg, in the blockquote above where it lists "marital privacy" as one of the fundamental liberties protected by substantive due process, actually cited Griswold for this proposition. How Griswold specifically acts as a precedent of legal reasoning is murky at the very least.

I've been thinking about whether substantive due process should be made into a separate article because of how much there is to discuss. The topic needs to be expanded and some time taken to address each of the fundamental liberties that have been protected under it. Right now the examples are too limited to the more recent controversies of abortion and homosexuality. I'd like to see its application explained in other areas, such as marriage, childrearing, for which there is a longer history of Court application and traditional recognition of those liberties. Postdlf 3:30 30 Apr 2004 (UTC)

Sure, it might be useful to have a separate article on SDP. I'd leave this brief summary that we've worked on the way it is, though. It's a quick, handy reference. If you do a separate article, I assume you want to focus on Pierce and Meyer. To me, these cases don't mean a whole heck of a lot, because they were decided in the midst of the Court's other crazy decisions using SDP to prevent economic regulation. Also, Justice Kennedy has pointed out (I think in Troxel v. Granville) that Pierec and Meyer could have been based on the First Amendment instead (freedom of religion and assembly). If you write about these two old cases, don't forget that Justice Holmes wrote a dissent in Meyer, although in a separate companion case. Ferrylodge, April 30

I have just started to focus on Postdlf's list of procedural rights explicitly contained in the Constitution (or maybe someone else wrote this list). I agree with most of them, but not all. The right to receive just compensation for takings (in the 5th Amendment) is a substantive right; uncompensated takings are forbidden no matter what procedures the government uses. Many of the other listed rights are correctly characterized as procedural. Then there are some in a gray area, so I'll leave them for now. But I will delete the Takings Clause. Also, I've clarified the 6th Amendment right to a speedy trial, and added the Article III right to a jury trial (whether the crime is committed in a state or in another location). Ferrylodge, April 30

I didn't create the list, and I had my doubts as to whether that list should be under this topic at all, but when I started editing this article, I didn't want to replace everything that was previously contributed, so I just cleaned it up. Feel free to change it as you feel necessary. Postdlf 2:31 1 May 2004 (UTC)

Hi, I just added an external link to an article in the Akron Law Review that provides extensive legal background and references regarding the Due Process Clause in the US Constitution. Seems like this would be a useful supplement to this Wikepedia article that I've helped to edit (see comments above). Ferrylodge, 22 January 2005.


[edit] Incorporation = Substantive Due Process

I must admit that I'm a bit confused as to why incorporation is currently a completely separate section from substantive due process, due to the general justification for incorporation that it involves applying the substantive component of "liberty" under the Due Process Clause of the Fourteenth Amendment to the states. Thus, incorporation is only a subcategory of substantive due process, and our article's organization (as well as the substance of the discussion on incorporation) ought to reflect that.

If there are no objections within the next week or so, I will make the necessary organizational changes and add a brief explanation in the article of why incorporation is a specific application of substantive due process. SS451 04:03, May 31, 2005 (UTC)

Because it is not an entirely resolved matter (academically) that incorporation need proceed via substantive due process. I cite Randy Barnett efforts in this field to restore the privleges and immunities cause of section 1 of the 14th amendment. (which is to say that if you believe that the slaughterhouse decision should be reversed then you can achieve incorpotation without substantive due process) --Pearlg 19:48, 26 Jun 2005 (UTC)
As far as the Court has ruled however, the P&I clause of the 14th is nothing more than an anti-discrimination provision regarding out-of-state residents. Postdlf 01:05, 27 Jun 2005 (UTC)
Um, no. That is not how the court neutered the privleges and immunities clause of the 14th amendment. The Privleges and Immunities clause of Article IV is the anti-discrimination provision regarding out-of-state residents. The Article IV P&I reads: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." It is generally accepted that this clause protects out-of-state citizens when they travel to other states against treatment in a manner different from that of citizens of those states. Conversely, the 14th amendment P&I reads: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Notice the difference. The slaughterhouse decision did not say that this was merely a repeat of the one in Article IV. The Supreme court ruled that the Privledges and Immunities in the 14th amendment applied only to ex-slaves, not to butchers, and that it only protected rights of "national citizenship" which the court claimed did not include the "bill of rights".
Let me say, it is _dead_ wrong to say that incorporation depends on substantive due process. There is substantial support that incorporation derives from p&i and that due process is a poor basis for incorpotation. That the court persists in its current reasoning is a reflection that 1) incorporation would arise either way so "who cares" and 2) that advocates of majoritarianism and those opposing economic rights are worried about the possible implications of emending the (5-4) mistake in slaughterhouse that has been sustained primarily by silence and otherwise by mere dicta. --Pearlg 02:53, 27 Jun 2005 (UTC)
Look, we are dealing here in article that is first and foremost an attempt to describe the state of the law, not the state of a counterfactual body of law that might have resulted if the Slaughterhouse Cases had come out differently. It's fine to mention that there may well be a theoretical basis for using the Privileges and Immunities Clause to achieve incorporation, but to say that as the law currently stands, incorporation is not simply a sub-category of substantive due process is simply incorrect. Since it's been a long time since the last response here, I am going to wait a week for further comments before making the organizational changes necessary to indicate the incorporation doctrine's actual current legal status as a part of substantive due process. SS451 03:56, September 6, 2005 (UTC)

I edited the article to reflect the accurate status of the incorporation doctrine as an outgrowth of substantive due process. I also added a paragraph linking the two and noting that some feel that the P&I Clause is the better source, but that the Supreme Court doesn't agree. SS451 04:40, 21 September 2005 (UTC)

[edit] Large Addition of ? original research

Large addition added by user: 68.7.204.241. Will post here where can be discussed. Appears mostly opinion without any references provided.—Gaff ταλκ 01:42, 25 October 2005 (UTC)

The edit in question can be seen here. I removed it because it was wholly POV advocacy. Postdlf 05:30, 25 October 2005 (UTC)

[edit] Due process in war

I'd like a person well versed on the topic to add a section on due process in war. For example, when killing "known" terrorist leaders in war by targetted missile strikes. In war, is there a moral necessity to ensure that someone is guilty?

Some of the questions I would like answered:

What about due process in war? What is the consensus on it?

Are foreign individuals entitled to due process by a different nation or military?

Is due process something we are morally obligated to provide someone, or is that a privilege granted by the state?

[edit] Page has leaned conservatively

I noticed the article started a bit sneeringly that due process is rationally only about process and then it bookended the current state of the law between that dismissal of substantive due process and other attacks on the concept. The only Justices whose views were discussed were Scalia and Thomas, despite the fact that they has never been in the majority in arguing that there is no substantive due process (SDP). It would please many conservative Federalist Society and "Constitution in Exile" legal activists.

If a conservative believed that 2 + 2 = 4, would that mean that a wikipedia article that said 2 + 2 = 4 "leaned conservative"? The article sneers at the concept of substantive due process - as far as it sneers at all - insofar as the written medium has the effect of rendering painfully clear that it is an oxymoron. Simon Dodd 14:23, 13 March 2006 (UTC)

[edit] Privacy

The article alludes that the notion of privacy rights began with Griswold, but I believe reference to Olmstead v. US (1928) is warranted. In his dissenting opinion, Justice Brandeis wrote:

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence"


CORRECTION: The generally accepted beginning of the notion of privacy rights precedes Olmstead. See e.g. The Right to Privacy, Samuel D. Warren and Louis D. Brandeis, Harvard Law Review, 1890. (can be found here http://www.lawrence.edu/fast/boardmaw/Privacy_brand_warr2.html) 161.7.2.160 16:24, 27 March 2007 (UTC) JCH

[edit] In america... Speaking from experience

In america, due process does not apply to you unless you can afford to fight for it. For example, If you are poor and you are represented by a state appointed public defender, you might as well plan on going back and forth to court for the next 9 to 12 months. Each time you go back to court it will be adjourned for some reason most likely having nothing to do with your individual case, i.e. schedule too full, busy with a trial, you took too long to agree to a plea bargain.

[edit] Requested move

Due process → Due process in the United States – The article deals almost exclusively with U.S. due process. The talk page should move with it, so that's why I'm proposing the move and not just cutting and pasting to a new article. After the move, Due process should be left with the original introduction paragraph and a "main" link to the new article. —Markles 14:43, 22 August 2006 (UTC)

[edit] Survey

Add "* Support" or "* Oppose" followed by an optional one-sentence explanation, then sign your opinion with ~~~~

  • Oppose. I support the reasons for the move, but not the proposed new name. I would support a move to Due process (United States) with standard parenthetic disambiguation so that editors could enter [[due process (United States)|]] and readers would see due process. With this proposed change, editors have to type [[due process in the United States|due process]] to achieve the same effect. Finally, due process in the United States is commonly referred to as "due process", not as "due process in the United States", so the proposed name violates the primary purpose of the article title: to specify the most common name used to refer to the subject of the article. --Serge 23:38, 25 August 2006 (UTC)
  • Oppose per Serge. By the way, this survey violates Wikipedia:Straw polls, which states that "Consensus must be reached about the nature of the survey before it starts. Allow about a week for this process." (Now, Wikipedia:Straw polls is just a guideline, not a policy, so it's not necessarily set in stone; but it should be abided by unless there's a specific reason to deviate from it. And in this case, abiding by it would have avoided the "oppose" votes that support in principle but must oppose to the specific proposal.) Ruakh 01:18, 26 August 2006 (UTC)
  • Oppose. Is it actually called "due process" in other countries? The article implies it isn't, what with the bit about "fundamental justice." Since the term comes from the Constitution of the United States, I don't see why Due Process shouldn't stay where it is. There can be links at the beginning or end of the article for similar rules in other countries, but there's no need to move the article, especially if the other procedures are not actually called "Due Process." SnowFire 20:50, 26 August 2006 (UTC)

[edit] Discussion

Can anyone answer SnowFire's question? Because that's a rather major point: if "due process" is a term that applies specifically to the U.S., then we can remove the ==Due process in the United States== section heading and promote all its subsections. (We'd then have to integrate the article-wide lead text with the lead text of the "Due process in the United States" section somehow.) And if it's not a term that applies specifically to the U.S., then we need to add a lot more information to the article — information about various other countries — before it makes sense to split off the U.S.-specific article. Ruakh 16:00, 27 August 2006 (UTC)

  • It was requested that this article be renamed but there was no consensus for it to be moved. —Mets501 (talk) 14:00, 28 August 2006 (UTC)

[edit] Possible POV Issue

The recent edits, by the 68.xxx IP address seem to be a bit one sided (although I agree) it should probably be reviewed.Mikelj 05:36, 23 October 2006 (UTC)

I've tried to be as neutral and objective as possible. Hopefully, the article is now improved. Maybe I'll wait awhile before doing anything else to it, so that anyone who wants to review it can do so, as it stands. Andrew 23 October 2006

[edit] Amar

Thanks, Kenosis, for putting the due process page into better format. Regarding the Amar quote, I think it's important. One of the main arguments against using the 14th Amendment's Privileges or Immunities Clause to incorporate the Bill of Rights against the states is that it would render the 14th Amendment's Due Process Clause superfluous. Amar concisely addresses this point, by showing that the 14th Amendment's Due Process Clause would not be superfluous at all. So, I'd like to keep that quote in there, if possible. 69.183.187.206 07:02, 25 October 2006 (UTC)Andrew

Sorry, I guess I missed this before making recent changes to this article. I do not think the Amar quote is appropriate here. The fact is that substantive due process is the legal basis for incorporation, and while it is all right to mention the alternate theory on this page, going into as much detail as there was is unnecessary. Such details should be primarily confined to the Privileges or Immunities Clause article. —The preceding unsigned comment was added by SS451 (talk • contribs) 10:38, 13 May 2007 (UTC).
I have considerably shortened and reinserted this material. Amar is offering an explanation of why the DP Clause exists in the 14th Amendment, and that seems very relevant to mention in this article. Certainly, it would be no more relevant in the P or I Clause article than in this one. However, I can see why it would be helpful to shorten this material, so I have done so.Ferrylodge 16:39, 13 May 2007 (UTC)

[edit] Relation to habeas corpus

I'm not in the legal professions but was recently in a discussion about habeas corpus, because of Bush's recent decision to abrogate common law going back to the Magna Carta. (Sorry to let my opinions intrude.) Anyway, it seems that the concepts of due process and habeas corpus must have a lot to do with each other, but the phrase "habeas corpus" never appears in the article on due process. So a layman is here requesting that the writers working on this article (who seem to have legal training) discuss the relation between the two ideas.


Hi. It's controversial whether "habeas corpus" is part of "due process." See here. Even if habeas corpus is part of due process, there are a zillion other aspects of due process that the courts have identified as well, so it would be difficult to name them all in one little Wikipedia article. Habeas corpus is explicitly discussed by the Constitution, in the "Suspension Clause" which explicitly gives Congress power to suspend habeas corpus under specific limited circumstances. That makes habeas corpus kind of unique, because Congress is not typically allowed to violate a right once it is deemed to be an aspect of due process. Of course, you're correct that habeas corpus is a very important right, and it's definitely protected by the Constitution, even if not by the Due Process Clause. Thanks for your comment.69.183.187.206 09:16, 2 November 2006 (UTC)

[edit] Excess material

Placing excess material just remove from text of article here for future reference. ... Kenosis 06:40, 2 November 2006 (UTC)

==Procedural due process==
Procedural due process is essentially based on the concept of "fundamental fairness". As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings. Procedural due process has also been an important factor in the development of the law of personal jurisdiction.
In the United States, criminal prosecutions and civil cases are governed by explicit guarantees of rights under the Bill of Rights and as incorporated under the Fourteenth Amendment to the States. Due process provides protection to the individual that statutes, regulations, and enforcement actions must at least meet (but can exceed), in order to ensure that no one is deprived of "life, liberty, or property" arbitrarily and without opportunity to affect the judgment or result. This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being punished, which would be tantamount to cruel and unusual punishment.[1]
In 1934 the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).[2]
==Substantive due process==
The courts have viewed the due process clause as embracing those fundamental rights that are "implicit in ordered liberty". Just what these rights are is not always clear. Some of these rights have long histories or "are deeply rooted" in our society.
The courts have largely abandoned the Lochner era approach (approximately 1890-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract.
Modern substantive due process doctrine protects various aspects of privacy, including bodily autonomy, private sexual activity (Lawrence v. Texas), contraception (Griswold v. Connecticut), and abortion (Roe v. Wade), as well as substantive protections of the Bill of Rights. However, there continues to be debate as to what may have been the Supreme Court's failures to protect enough of our basic liberties, and debate as to what may have been the Supreme Court's past abuses in defending activities that are not really protected by the the Due Process Clause. ... 06:40, 2 November 2006 (UTC)
I've replaced some of the above material, in keeping with the common-law jusrisdiction (most applicably the USA) to which it applies. ... Kenosis 07:00, 2 November 2006 (UTC)

[edit] Reformatting

It seems to me that maybe the recent formatting changes need to be thought out a bit more carefully. The following three subsections were earlier today part of the "substantive due process" section, but now they're not:

4.1 Development and use as legal doctrine 4.2 Criticisms 4.3 Judicial review of substantive due process violations

This is problematic, because all of these subsections involve substantive due process, and now they're part of a totally different section.

Hey, I don't mind changes, but I've spent quite a bit of time working on this page, and it kind of seems like these recent huge changes have thrown things into a bit of chaos. Shall I take a crack at reorganizing things again?

Also, "Personal Jurisdiction" is only one tiny part of procedural due process, and therefore does not merit its own subsection, especially since we can merely link to the separate Wikipedia page for "personal jurisdiction".... http://en.wikipedia.org/wiki/Personal_jurisdiction

Andrew 69.183.187.206 06:52, 2 November 2006 (UTC)

First year civpro, right? Like it or not, there is a whole globe to which to account here. It's a relatively short amount of time in which to expect demands to include appropriate credence in accordance with what the US Supreme Court has acknowledged to be other possible forms of justice in the world. That accounts for the preponderance of the last edits. No significant material has been removed, and what has been removed was placed just above, and most of that has been replaced in the article. ... Kenosis 07:05, 2 November 2006 (UTC)

No, I have been a practicing attorney for several years, with more than one law review article published, plus essays at Findlaw's Writ and elsewhere. I realize that "there is a whole globe to which to account here." I'd just like to discuss and be cooperative. Anything wrong with that?69.183.187.206 07:11, 2 November 2006 (UTC)

I have already replaced, prior to the comment immediately above, the vast majority of the material at issue, and what I didn't repace is in the above section on this page. So there's no diminution of your work, 69.183.187.206. ... Kenosis 07:26, 2 November 2006 (UTC)

I have taken the liberty of removing the section on personal jurisdiction because it is one of many many aspects of procedural due process. Moreover, it already has its own Wiki page that's already linked here in the section on procedural due process. If we include details about personal jurisdiction, then there's no reason not to have details about every other aspect of procedural due process, which would be impractical. 69.183.187.206 07:48, 2 November 2006 (UTC)

[edit] Substantive Due Process

Some sentences were recently inserted that I have difficulty with, and I'm going to rewrite them tomorrow, unless anyone has any big objection. The sentences do not cite any authority, and I think they're inaccurate:

Just what those rights are is not always clear, though life, property, and freedom from imprisonment are some of the better established. Others include the right to vote, the right to travel, and the right to privacy (which itself contains rights to raise, have, and not have children). Some of these rights have long histories or "are deeply rooted" in our society. For example, by the way battery has been defined by courts, common law held for centuries that people have the right to refuse medical treatment. Now, even if states changed the definition of battery to exclude unwanted medical procedures, many courts would find that right under the "liberty" part of the due process clause.

First of all, there obviously is no SDP right to property. The 5th Amendment explicitly says that property can be taken away from a person against his or her will, as long as just compensation is provided. Likewise, freedom from imprisonment is not an SDP right. People are imprisoned all the time, after trial for crimes. Characterizing the right to travel as an SDP right is also inaccurate; this right is explained in detail in the case of Saenz v. Roe, and it is based on other provisions of the Constitution, especially the Privileges and Immunities Clause of Article IV, as well as the Citizenship Clause of the 14th Amendment. As far as the right to vote is concerned, I'm not aware of cases that treat it as an SDP right; instead, if a right to vote is conferred by law, then it becomes a fundamental right for Equal Protection purposes, but not for SDP purposes (as far as I'm aware). I also find it inappropriate to speculate about what "many courts would find." So, I'm thinking about rewriting this paragraph, unless anyone has any big objections.69.183.187.206 08:43, 2 November 2006 (UTC)

Sort of yes, sort-of no. I don't think SDP would allow arbitrary, irrational, or capricious seizures of property, if the aggreived could prove any of those things. On the other hand, such proof is rarely come by, ad also, if it were, it wouldn't matter if it was property or any other liberty interest. I'm not saying you're "wrong," I'm saying law is full of qualifications, so you can't be too hasty. Non Curat Lex (talk) 08:28, 3 February 2008 (UTC)

[edit] International Due Process

Yesterday, a section on "International Due Process" was inserted into this Wikipedia article. A section with that title had been deleted in August by someone other than myself. I am skeptical that this section should be in our Wikipedia article about Due Process. The concept is very obscure.

If one does a Google search for "substantive due process" one gets 352,000 hits. For "procedural due process" one gets 423,000 hits. For the combination of "due process" and "incorporation" one gets 1,690,000 hits. But for "international due process" one gets only 980 hits.

Likewise, if one does a Google search in the Google "Scholar" database for "substantive due process" one gets 3400 hits. For "procedural due process" one gets 3300 hits. For the combination of "due process" and "incorporation" one gets 13,700 hits. But for "international due process" one gets only 64 hits.

For now, I am going to move this section of the Wikipedia article so that it is no longer the first section. Also, I would appreciate feedback about whether this section should be deleted.69.183.187.206 22:05, 2 November 2006 (UTC)

[edit] Judicial review of substantive due process violations

This page mentions two levels of judicial review. I was reading the Equal protection wiki article and they mention 3 levels. See here: http://en.wikipedia.org/wiki/Equal_Protection_Clause you might want to update this page to make the two consistent. (my first use of wiki, sorry if i did something wrong) 67.170.213.19 02:05, 21 February 2007 (UTC)

No, you didn't do anything wrong. Thanks for the comment.
My understanding was that intermediate scrutiny is primarily for First Amendment cases and also for Equal Protection cases (especially cases related to gender). According to Jeffrey M. Shaman's book Constitutional Interpretation: Illusion and Reality, “The standards of intermediate scrutiny have yet to make an appearance in a due process case.” I don't know for sure if that is correct, but this seems to be why "intermediate scrutiny" is not mentioned now in the Due Process article. Maybe you could look into this some more, and find out for sure?Ferrylodge 02:48, 21 February 2007 (UTC)
Alternative formulae of heightened scrutiny apply in first amendmet cases against state agents, which are, sort-of, substantive due process, of incorporated, enumerated rights. For unenumerated fundamental rights, only two-tiered scrutiny is used. Also, the phrasing of the strict scrutiny elements is a little bit different. Non Curat Lex (talk) 08:29, 3 February 2008 (UTC)

[edit] Substantive Due Process Needs Own Page

I think it would be wise to have a page devoted to Substantive Due Process in the United States, including the judicial origins of the doctrine etc. I think it is an issue important enough to merit its own page. Calaf 19:15, 15 April 2007 (UTC)

The article is currently about 5300 words. According to WP:Size, "readers may tire of reading a page much longer than about 6,000 to 10,000 words...." So, I don't think the article is too long at this point. However, if someone wants to add a lot of new material about SDP, then a new page might be a good idea.Ferrylodge 20:38, 15 April 2007 (UTC)

Substantive and Procedural due process (under the U.S. Constitution) should each be their own page. Their relation to one another is a similar name and that they owe their origins to the 14th Amendment. Other than that, they have almost nothing in common. Substantive due process is a guarantee of freedoms, procedural due process relates to court proceedings. It is also important that what is a liberty interest for procedural due process is not necessarily one for substantive due process (such as an injury to reputation).

Procedural due process guarantees are those which dictate what the government must do to deprive you of life, liberty, or property and are very situation specific. For example, the deprivation of a right to attend public school requires far less process that the deprivation of the right to property.

Substantive Due Process, on the other hand, has two main divisions, incorporation (of the Bill of Rights) guanantees and "non-textual" rights such as those at issue in Griswold, Roe, and Lawrence. This can easily be considered the most hottly contested issue at the Supreme Court. The list of the non-textual SDP rights alone is sufficient to fill a page on substantive due process.RyanGentry (talk) 00:35, 3 February 2008 (UTC)

Agree - weakly. "Substantive due process" could use an entire page simply to explain what the hell it means. However, until that content is wikified, I think it's not urgent. Non Curat Lex (talk) 01:04, 3 February 2008 (UTC)

It seems like what RyanGentry is suggesting would best be implemented by a list. See Wikipedia:List. I don't think that inserting a list into this article would be the best way to go, and I'd suggest starting a separate list that can be linked form this article.Ferrylodge (talk) 05:03, 3 February 2008 (UTC)
Not a list per se, and not a list for list's sake. However, in order to under Substantive Due Process, you must understand what the Court has and has not recognized. Would we reject a "list" of rights covered under the 1st Amendment (speech, religion, press, association, assembly)? See the incorporation page for an idea of what I am thinking. What are your thoughts on a separate page?RyanGentry (talk) 07:07, 3 February 2008 (UTC)
If you start a separate page, I would urge that all the material that has been in this article about substantive due process stay in this article. This material can also be copied, and expanded upon, in the new article. I don't think this article should even attempt to list all of the uses to which substantive due process has been put. The new article could address not just federal SDP, but state SDP as well.Ferrylodge (talk) 07:33, 3 February 2008 (UTC)

[edit] Supremacy Clause

I've just removed the following language from the end of the History prior to the Bill of Rights section: "However, when the U.S. Constitution took effect in 1789, it did contain a Supremacy Clause, which specified that the Constitution itself, and federal statutes enacted pursuant to the Constitution, would be the supreme "law of the land"." Since the 5th Amendment was _not_ applied to state action until "incorporated" under the 14th Amendment, this sentence, while true, has nothing to do with the history of Due Process. Fitzaubrey 04:16, 22 April 2007 (UTC)

Hi. I've reinserted the deleted material, with some additional explanation: "However, when the U.S. Constitution took effect in 1789, it did contain a Supremacy Clause, which specified that the Constitution itself, and federal statutes enacted pursuant to the Constitution, would be the supreme 'law of the land'. As mentioned, in the early United States, the terms law of the land and due process were used somewhat interchangeably." This supports the view of some jurists (e.g. Hugo Black) as to what the framers meant by due process. As quoted in the article, Black said that the Due Process Clause requires only "that our Government must proceed according to the 'law of the land'--that is, according to written constitutional and statutory provisions." In re Winship, 397 U. S. 358, 382(1970) (Black, J., dissenting).Ferrylodge 04:50, 22 April 2007 (UTC)

[edit] Incorporation Cleanup

I cut down the incorporation section significantly, deleting much of the information about the alternative theory of incorporation via the Privileges or Immunities Clause as being more appropriate to an article on that clause. The fact that incorporation has proceeded via substantive due process is not open to reasonable question, and therefore theories about more appropriate textual sources can be mentioned here, but do not warrant in-depth argumentation in this context. I deleted the reference to procedural due process. I can see why the error was made--many of the provisions of the Bill of Rights are procedural protections. But the incorporation of these specific procedural protections against the states has proceeded by means of substantive due process. Procedural due process is another matter entirely, adding certain protections to the specific rights protected by the Fifth and Sixth Amendments. Finally, I deleted the following paragraph which, while somewhat opaque, appears to be to rest on a seriously mistaken conception of what incorporation of the Bill of Rights in the context of constitutional law is:

"When the Due Process Clause of the Fifth Amendment was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were proposed in separate amendments. As James Madison put it, those rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross."[1] Thus, for example, the states were allowed to reject the Sixth Amendment while ratifying all of the other amendments, and in that case the rights in the Sixth Amendment would not have been incorporated into the Constitution. Roger Sherman explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution."[2] The doctrine of incorporating the content of other amendments into the Due Process Clause was thus an innovation, when it began in 1925, and it remains controversial today."

If anyone can explain to me what all this has to do with incorporation as such, I suppose it can go back in. Incorporation took place in a context of all the amendments that were ratified as being in the Constitution already, so it was not a matter of whether the Sixth Amendment, for example, would be law at all, but rather whether it would be law as applied to the states. Moreover, at the time of the ratification of the original Bill of Rights, the amendments were understood (and indeed, were expressly limited) to apply only to the federal government. It's difficult for me to understand what that might have to do with the fact that states were allowed to pick and choose among the amendments proposed in 1789. SS451 10:21, 13 May 2007 (UTC)

I have edited the incorporation section to make clear that procedural due process has been used to incorporate procedural rights, and substantive due process has been used to incorpoarte substantive rights. This seems rather obvious, but since a different explanation has recently been inserted, I have added a footnote.Ferrylodge 16:13, 13 May 2007 (UTC)
This is incorrect. Substantive due process protects the specific substantive procedural rights enumerated in the Fifth and Sixth Amendments. Procedural due process undertakes a general "fundamental fairness" inquiry that is informed by the values underlying those amendments, but which, taken by itself, may protect both less and more than the specific guarantees of the Fifth and Sixth Amendments. Procedural due process has been enforced against the states since the Fourteenth Amendment was ratified, but it was not until the 1960s, about a century later, that the substantive procedural rights of the Fifth and Sixth Amendments were held to bind the states. The only textual basis of the incorporation of the Bill of Rights in constitutional law is the doctrine of substantive due process. SS451 04:49, 14 May 2007 (UTC)
I have also considerably shortened the Amar material, and reinserted it (also see discussion above). Amar is offering an explanation of why the DP Clause was inserted into the 14th Amendment, and this seems very relevant to this article. Certainly, it would be no more relevant in the article about the Privileges or Immunities Clause.Ferrylodge 16:48, 13 May 2007 (UTC)
Amar is offering an explanation of why the Due Process Clause was inserted into the Fourteenth Amendment on the theory that the Privileges or Immunities Clause is the "correct" textual basis for incorporation. If one rejects his premise, as the Supreme Court has since 1873, then his explanation is unnecessary and irrelevant. The proper place to discuss this defense of the Privileges or Immunities theory of incorporation is the Privileges or Immunities article--the only appropriate treatment of that theory on this page is a very brief one. SS451 04:49, 14 May 2007 (UTC)
Lastly, I have rewritten and reinserted the paragraph which SS451 found "opaque." It now reads as follows:

The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process,[3] and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter. When the Bill of Rights was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross," as James Madison put it.[4] Roger Sherman explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution."[5] Thus, the states were allowed to reject the Sixth Amendment, for example, while ratifying all of the other amendments including the Due Process Clause; in that case, the rights in the Sixth Amendment would not have been incorporated against the federal government. The doctrine of incorporating the content of other amendments into “due process” was thus an innovation, when it began in 1925 with the Gitlow case, and this doctrine remains controversial today.

Hopefully, that clears up any opacity.Ferrylodge 17:28, 13 May 2007 (UTC)
Unfortuantely, it most definitely does not. The problem here is that the context is completely different. By the time incorporation proper began, all of the provisions of what we know as the Bill of Rights had been part of the Constitution for about a century and a quarter. That is, the States had long since assented to those provisions that were most preferred, and the question in 1925 certainly had nothing to do with any State picking or choosing which suggested protections ought to be included at all; the question was merely, given that these protections were in force against the federal government, the Due Process Clause of the Fourteenth Amendment required that they also be enforced against the state governments I guess what I'm trying to stress is that the letters from Sherman and Madison are speaking to a completely different question than incorporation, especially given that the Fourteenth Amendment wasn't even a twinkle in anyone's eye in the late 18th century.
Now, given that you essentially changed everything back to exactly the way it was, I suspect that my changing the page back to the way I had it, with the corrections I had made, will result in you doing the same thing. Revert wars are unproductive, so I'd like to thrash this out here, and then get a consensus version up soon--but also a correct version, which the current section on incorporation is not. SS451 04:49, 14 May 2007 (UTC)
SS451, let's take one issue at a time, okay? You say: "Substantive due process protects the specific substantive procedural rights enumerated in the Fifth and Sixth Amendments." I say this is incorrect. You are mixing up procedural due process and substantive due process, which are separate concepts, generally speaking. Did you look at the supporting footnote that I inserted into the article? The right to counsel, for example, is a procedural right, not a substantive right. Calling it a substantive right is simply incorrect. Please look at the footnote I inserted into the article, and please let me know of any contrary authority that you would like to rely upon. Thanks. Sources available on the internet are much preferred. Are you saying that all enumerated constitutional rights are "substantive"? That's just not correct.
Conduct that violates a substantive constitutional right are actions governmental officials may not take no matter what procedural protections accompany them. See Hudson v. Palmer, 468 U.S. 517 (Stevens joined by Brennan, Marshall, and Blackmun). "Although most of the rights in the Bill of Rights are procedural, the rights in the First Amendment are substantive." See Richard Cortner, The Nationalization of the Bill of Rights: An Overview. For example, Fifth Amendment protection against double jeopardy is a procedural due process right. See The American Democracy by Thomas E. Patterson (McGraw Hill 1996). Justice Douglas, joined by Brennan and Marshall, once wrote that the Supreme Court should not be "concerned with the wisdom of state policies, only with the constitutional barriers to state action. Procedural due process is one of those barriers, as revealed over and over again in our decisions. Some of its requirements are explicit in the Bill of Rights -- a speedy trial, Klopfer v. North Carolina, 386 U.S. 213; a trial by jury, Duncan v. Louisiana, 391 U.S. 145; the right to counsel, Gideon v. Wainwright, 372 U.S. 335; the right to confrontation, Pointer v. Texas, 380 U.S. 400 -- all as made applicable to the States by reason of the Fourteenth Amendment." McGautha v. California, 402 U.S. 183 (Douglas dissenting). You are simply incorrect to assert that these listed procedural rights are protected by substantive due process instead of procedural due process.
In view of all these sources I have painstakingly cited (and you have cited none), do you still want to argue that the following sentence in the present article is incorrect? "The basis for incorporation is substantive due process regarding enumerated substantive rights, and procedural due process regarding enumerated procedural rights." Ferrylodge 04:59, 14 May 2007 (UTC)

[edit] Lack of worldwide view

This article espouses due process soley from its incorperation and use in US law: the first four words are "In United States law", the infobox is for a US Constitution article, and 80-85% of the article discusses due process only in the context of its adoption in the US. As the article itself states quite early on, the concept traces its origins to the 1215 Magna Carta, a piece of English legislation, and still has enormous relevance there and in numerous other juristictions throughout the world.

I like this article, it says a lot of useful things to know, but I belive it should either be retitled "Due Process in the United States", or include a far more international focus. As it stands the article gives a dangerous impression that the United States has somehow monopolised the use of due process and it doesn't exist anywhere else in any form worth talking about for more than four lines. —Preceding unsigned comment added by 82.36.125.154 (talk) 00:36, 13 January 2008 (UTC)

I disagree with placing a globalize tag on this article. Many articles don't take a global view, such as Statue of Liberty and Grand Canyon, and that's perfectly appropriate. The "Due Process" clause happens to be part of the US Constitution, and thus it's mainly related to the U.S. Nevertheless, "due process" does have a much smaller role in English law, and an even smaller role in other countries.
The lead of the present article reflects this. The first sentence of the lead mentions both US and English law, and the last sentence of the lead mentions other countries. The first section of the article also contains subsections for the US and England. The last section of the present article is titled "International due process." More material can be placed in that section if it's sufficiently notable. As of now, however, I don't think there's a sufficient amount of stuff in this article to start spinning it out to other new articles.Ferrylodge (talk) 00:49, 13 January 2008 (UTC)

Whoa, a mere 7 minutes passed before someone disagreed so much they ripped off the template and didn't bother to discuss why here. To answer Ferrylodge's edit comment "Many articles don't take a global view, such as Statue of Liberty and Grand Canyon. The "Due Process" clause happens to be part of the US Constitution." - my reason is simple. Unlike the Statue of Liberty or the Grand Canyon, due process does exist outside the United States. It is and has been part of the UK Constitution since the Magna Carta, and has existed in the European Convention on Human Rights, which 47 countries are party to, as Article 6, since 1957. So it is not just yours. This article implies that it is, and that will sadly mean lots of people will think that due process does only exist in the US. —Preceding unsigned comment added by 82.36.125.154 (talk) 00:46, 13 January 2008 (UTC)

That's interesting. Does Article 6 of the European Convention on Human Rights use the words "due process"?Ferrylodge (talk) 00:51, 13 January 2008 (UTC)

(undent)Okay, I'll answer that question. Article 6 of the ECHR does not use the words "due process". Here's the full text:

“ Article 6 – Right to a fair trial1

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence has the following minimum rights: to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; to have adequate time and facilities for the preparation of his defence; to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

 ”

We have to be careful in this article to not project our own views of "due process." If the ECHR does not self-identify as a "due process" provision, then I don't think it's proper for us to identify it as such. The lead paragraph of the present article refers to "the concepts of natural justice and procedural justice used in various other jurisdictions." I think that Article 6 of the ECHR falls more in the category of procedural justice, which is not necessarily synonymous with "due process".Ferrylodge (talk) 00:57, 13 January 2008 (UTC)

The problem is that this article doesn't know what its own purpose is. Is it to explain "due process" in United State law, or "due process" globally? I don't know, and I don't think I see a consensus. The title of this article is "due process," not "due process clause of the 5th Amendment of the U.S. Constitution" or "of the 14th amendment of the U.S. constitution." That suggests that the article is an article about a brooding, omnipresent legal concept - or at least about the big picture of "due process" rights. The big picture of due process rights is that individuals can hold governments accountable in court as a way to protect their rights, other than through the political process or civil war. Accountable government and citizen suits are not uniquely an American concept.
However, "due process" is a uniquely anglo american way of stating it. And as a term of art, it is really uniquely American. Only in this country do we rely on "due process" rights to do so much work in enabling those citizen suits. Only in this country do lawyers hold those words so dear. Articles on specific provisions of U.S. law (the article ont he 5th amendment and 14th amendments) link here. A search for cases that are decided on "due process of law" through reporters worldwide will lead you only back to U.S. reporters. So even though this article by its title purports to be global, not local, it is predominanlty an article about a subject that has substantial or notable meaning only in U.S. law. So to make this article "suitably global" I think it is necessary to (a) differentiate "due process of law" as a freestanding legal concept from "due process of law" as a specific constitutional gauruntee in america (as I have done); (b) devote a subsection to surveying the analogous or comparable statutes in other civilized countries (as I am not able to do). Non Curat Lex (talk) 00:59, 1 April 2008 (UTC)
Please keep in mind that we have separate articles on natural justice and procedural justice which everyone acknowledges are international, global concepts. Those articles would become redundant if we cover the same material here in this Due Process article. Regarding whether "lawyers hold those words so dear", it varies. Roe v. Wade was built on the Due Process Clause. So was Lochner v. New York which helped pave the way for the Great Depression. And, the Supreme Court struck down the Missouri Compromise in Dred Scott v. Sandford, on no other grounds than the Due Process Clause. Maybe it would help clarify things if we rename this article "Due process as a term of Anglo-American law."Ferrylodge (talk) 01:09, 1 April 2008 (UTC)
Ferrylodge: referring to "due process" as dear was a bit cheeky of me; I hardly implying there was a critical consensus on its application. But love it or leave it, U.S. law is replete with references to due process, and that is not the case everywhere else. I think it's okay to leave the article named the way it is, as long as there is adequate explanation. Non Curat Lex (talk) 06:15, 1 April 2008 (UTC)

[edit] US

"This article is part of the series: United States Constitution" What? Why? --212.247.27.105 (talk) 21:03, 31 March 2008 (UTC)