Due process

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Due process (more fully due process of law) is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land, instead of respecting merely some or most of those legal rights. In the laws of the United States (U.S.), this principle gives individuals a varying ability to enforce their rights against alleged violations thereof by governments. Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to guarantee fundamental fairness, justice, and liberty. The latter interpretation is analogous to the concepts of natural justice and procedural justice used in various other jurisdictions.

Text in the United States Constitution

The Fifth Amendment to the U.S. Constitution reads:

The Fourteenth Amendment to the U.S. Constitution reads:

History prior to U.S. Bill of Rights

The term "due process" existed long before 1791 when it was inserted into the U.S. Constitution. The term had a lengthy history in both England and America.

In England

The concept of "due process" dates all the way back to Magna Carta of A.D. 1215. In Chapter 39 of the Magna Carta, King John of England promised as follows: "No free man shall be taken or imprisoned or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land."^[1] Magna Carta itself immediately became part of the "law of the land", and Chapter 61 of that great charter authorized an elected body of twenty-five barons to determine by majority vote what redress the King must provide when the King offends "in any respect against any man."^[1] Thus, Magna Carta not only required the monarchy to obey the law of the land, but also limited how the monarchy could change the law of the land.

Shorter versions of Magna Carta were subsequently issued by British monarchs, and Chapter 39 of Magna Carta was renumbered "29."^[2] The phrase due process of law first appeared in a statutory rendition of Magna Carta in A.D. 1354 during the reign of Edward III of England, as follows: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."^[3]

In 1608, the English jurist Edward Coke wrote a treatise in which he discussed the meaning of Magna Carta. Coke explained that no man shall be deprived but by legem terrae, the law of the land, "that is, by the common law, statute law, or custom of England.... (that is, to speak it once and for all) by the due course, and process of law.."^[4]

Both the clause in Magna Carta and the later statute of 1354 were again explained in 1704 (during the reign of Queen Anne) by the Queen's Bench, in the case of Regina v. Paty.^[5] In that case, the House of Commons had deprived John Paty and certain other citizens of the right to vote in an election, and had committed them to Newgate Prison merely for the offense of pursuing a legal action in the courts.^[6] The Queen's Bench, in an opinion by Justice Powys, explained the meaning of "due process of law" as follows:

[I]t is objected, that by Mag. Chart. c. 29, no man ought to be taken or imprisoned, but by the law of the land. But to this I answer, that lex terrae is not confined to the common law, but takes in all the other laws, which are in force in this realm; as the civil and canon law.... By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority.^[5]

Chief Justice Holt dissented in this case, because he believed that the commitment had not in fact been by a legal authority. The House of Commons had purported to legislate unilaterally, without approval of the House of Lords, ostensibly in order to regulate the election of its members.^[7] Although the Queen's Bench held that the House of Commons had not infringed or overturned due process, John Paty was ultimately freed by Queen Anne when she prorogued Parliament.

Throughout centuries of British history, many laws and treatises asserted various requirements as being part of "due process" or included in the "law of the land". This view usually held in regards to the essence of the existing law, rather than because of any intrinsic requirement. As the U.S. Supreme Court has explained, there has been no intention of asserting that a requirement "was essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used."^[8]

In the U.S.

In the early U.S., the terms law of the land and due process were used somewhat interchangeably. The 1776 Constitution of Maryland, for example, used the language of Magna Carta, including the law of the land phrase.^[9] In New York, a statutory bill of rights was enacted in 1787, and it contained four different due process clauses.^[10] Alexander Hamilton commented on the language of that New York bill of rights: "The words 'due process' have a precise technical import...."^[11]

New York was the only state that asked Congress to add "due process" language to the U.S. Constitution. New York ratified the U.S. Constitution and proposed the following amendment in 1788: "[N]o Person ought to be taken imprisoned or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law."^[12]

In response to this proposal from New York, James Madison drafted a Due Process Clause for Congress.^[13] Madison cut out some language, and inserted the word without, which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed, after Madison explained that the Due Process Clause would not be sufficient to protect various other rights:

Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed.^[13]

No state or federal constitution in the U.S. had ever before utilized any "due process" wording, prior to 1791 when the federal Bill of Rights was ratified. 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.

Interpretation of Due Process Clause in U.S. Constitution

The Fifth Amendment guarantee of due process is applicable only to actions of the federal government. The Fourteenth Amendment contains virtually the same phrase, but expressly applied to the states. The Supreme Court has interpreted the two clauses identically, as Justice Felix Frankfurter once explained in a concurring opinion: “To suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.”^[14]

The due process clause applies to "legal persons" (that is, corporate personhood) as well as to individuals. Many state constitutions also have their own guarantees of due process (or the equivalent) that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to certain individuals than under federal law.

Due process under the U.S. Constitution not only restrains the executive and judicial branches, but additionally restrains the legislative branch. For example, as long ago as 1855, the Supreme Court explained that, in order to ascertain whether a process is due process, the first step is to “examine the constitution itself, to see whether this process be in conflict with any of its provisions....”^[15] In case a person is deprived of liberty by a process that conflicts with some provision of the Constitution, then the Due Process Clause normally prescribes the remedy: restoration of that person's liberty. The Supreme Court held in 1967 that “we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights.”^[16]

As a limitation on Congress, the Due Process Clause has been interpreted by the Supreme Court not only as a remedial requirement when other constitutional rights have been violated, but furthermore as having additional "procedural" and "substantive" components, meaning that the Clause purportedly imposes unenumerated restrictions on legal procedures — the ways in which laws may operate — and also on legal substance — what laws may attempt to do or prohibit. This theory of unenumerated rights is controversial. For example, Justice Clarence Thomas stated as follows, in a 2004 dissent:^[17]

As an initial matter, it is possible 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).

Despite the objections of people like Justice Hugo Black in Winship, the courts have attempted to extract unwritten requirements from the Due Process Clause, regarding both procedure as well as substance. The distinction between substance and procedure is difficult in both theory and practice to establish. Moreover, the substantive component of due process has proven to be even more controversial than the procedural component, because it gives the Court considerable power to strike down state and federal statutes that criminalize various activities.

By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme Court to mean that “it was not left to the legislative power to enact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will.”^[18] But determining what those restraints are has been a subject of considerable disagreement.

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, 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 procedural rights under the Bill of Rights, most of which have been incorporated under the Fourteenth Amendment to the States. Due process has also been construed to generally protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair 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.^[19]

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".^[20]

Substantive due process

Substantive due process basics

Courts have viewed the due process clause, and sometimes other clauses of the Constitution of the United States of America, as embracing those fundamental rights that are “implicit in the concept of ordered liberty” (Palko v. Connecticut). Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear.^[21] Some of those rights have long histories or “are deeply rooted” in American 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. Since then, the Supreme Court has decided that numerous other freedoms, that do not appear in the plain text of the Constitution, are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions,^[22] and alternatively they could be protected by legislatures.^[23][10]

Today, the Court focuses on three types of rights under substantive due process in the 14th amendment. These categories originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. Those three types of rights are: the substantive rights of the accused (e.g. the Eighth Amendment), restrictions on the political process (e.g. the rights of voting, association, and free speech), and the rights of “discrete and insular minorities.”

The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in the history and traditions of the United States. If the right is not a fundamental right the court applies a rational basis test; if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. Once the court has established that the right being violated is a fundamental right it applies a strict scrutiny test. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.

Development and use of substantive due process as legal doctrine

Early in American judicial history, various jurists attempted to form theories of natural rights and natural justice that would limit the power of government, especially regarding property and the rights of persons. Opposing "vested rights" were jurists who argued that the written constitution was the supreme law of the State and that judicial review could look only to that document — not to the "unwritten law" of "natural rights". Opponents further argued that the "police power" of government enabled legislatures to regulate the holding of property in the public interest, subject only to specific prohibitions of the written constitution.

The idea of substantive due process came in as a way to import natural law norms into the United States Constitution; prior to the Civil War, the state courts — ungoverned by the Fifth Amendment — were the arenas in which this struggle was carried out. Some critics of substantive due process argue that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford. Some advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott, but argue that it was employed incorrectly.

The "vested rights" jurists saw in the "law of the land" and "due process" clauses of state constitutions restrictions on the substantive content of legislation. Those jurists were sometimes successful in arguing that certain government infringements were prohibited, regardless of procedure. For example, the New York Court of Appeals held in Wynehamer v. New York that "without 'due process of law,' no act of legislation can deprive a man of his property, and that in civil cases an act of the legislature alone is wholly inoperative to take from a man his property."^[24] However, the rationale of Wynehamer was subsequently rejected by the U.S. Supreme Court.^[25] Other antebellum cases on due process include Murray v. Hoboken Land, which dealt with procedural due process.^[26] But, the rationale of Murray was subsequently characterized by the U.S. Supreme Court, in the case of Hurtado v. California, as not providing "an indispensable test" of due process.^[8]

Another important pre-Civil-War milestone in the history of due process was Daniel Webster's argument as counsel in Dartmouth College v. Woodward, that the Due Process Clause forbids bills of attainder and various other types of bad legislation.^[27] Nevertheless, the U.S. Supreme Court declined in the Dartmouth case to address that aspect of Webster's argument, the New Hampshire Supreme Court had already rejected it,^[28] and the U.S. Supreme Court would later contradict Webster's rationale.^[29]

Given the preceding jurisprudence regarding due process, Chief Justice Taney was not entirely breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the Missouri Compromise unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." In Dred Scott, neither Taney nor dissenting Justice Curtis mentioned or relied upon the Court's previous discussion of due process in Murray, and Curtis disagreed with Taney about what "due process" meant in Dred Scott.

The phrase substantive due process was not used until the twentieth century. But, the concept was arguably employed during the nineteenth century.

Following the Civil War, the Fourteenth Amendment's due process clause prompted substantive due process interpretations to be urged on the Supreme Court as a limitation on state legislation. Initially, however, the Supreme Court rejected substantive due process as it came to be understood, including in the watershed Slaughter-House Cases. Some of those arguments came to be accepted by the Court over time, imposing on both federal and state legislation a firm judicial hand on property and economic rights that was not removed until the crisis of the 1930s.

Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, it has been charged that substantive due process developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts. Although "economic due process" restrictions on legislation were largely abandoned by the courts, substantive due process rights continue to be successfully asserted today in non-economic legislation affecting intimate issues like bodily integrity, marriage, religion, childbirth, child rearing, and sexuality.

Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut, wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights, such as the First Amendment (protecting freedom of expression), Third Amendment (protecting homes from being used by soldiers), and Fourth Amendment (security against unreasonable searches). The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights, as Justice Harlan had argued in his concurring Griswold opinion, instead of relying on the "penumbras" and "emanations" of the Bill of Rights as the majority opinion did in Griswold. Although it has never been the majority view, some have argued that the Ninth Amendment (addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg concurring in Griswold.^[30]

Social conservatives who reject sexual privacy rights, or who believe that those rights are properly subject to the democratic process absent further constitutional amendment, can nevertheless perhaps find some things to like in the line of substantive due process decisions. For example, religious parents persuaded the Supreme Court to recognize a substantive due process right "to control the education of one's children" and void state laws mandating that all students attend public school. In Pierce v. Society of Sisters, the Supreme Court said:^[31]

We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.

Thus, if the entire substantive due process line was reversed, it is conceivable that religious parents' option of home schooling or private schooling might be in danger from some state universal education laws, although it is also possible that those laws might be deemed to violate "First Amendment principles", as Justice Kennedy speculated in Troxel v. Granville.^[22] Current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision when one is available.^[32]

The right to marry a person of a different race was addressed in Loving v. Virginia,^[33] in which the Court said that its decision striking down anti-miscegenation laws could be justified either by substantive due process, or by the Equal Protection Clause. Advocates of substantive due process have sought to extend Loving in order to establish other rights (e.g. a right to gay marriage).^[34] A right to have children was addressed in Skinner v. Oklahoma,^[35] but the Court in Skinner explicitly declined to base its decision on due process, instead citing the Equal Protection Clause since the Oklahoma law required sterilization of some 3-time felons but not others. A substantive due process right of a parent to educate a young child (i.e. before ninth grade) in a foreign language was recognized in Meyer v. Nebraska, with two justices dissenting,^[36] and Justice Kennedy has mentioned that Meyer might be decided on different grounds in modern times.^[22] Laws that "shock the conscience" of the Court were generally deemed unconstitutional in Rochin v. California, though concurring Justices Black and Douglas argued that pumping a defendant's stomach for evidence should have been deemed unconstitutional on the narrower ground that it violates the Fifth Amendment's ban on self-incrimination.^[37] The Court in O'Connor v. Donaldson^[38] said that due process is violated by confining a non-dangerous mentally ill person who is capable of surviving safely in freedom, and Chief Justice Burger's concurring opinion noted that such confinement may also amount to "punishment" for being mentally ill, in violation of the interpretation of the Eighth Amendment in Robinson v. California. Freedom from excessive punitive damages was deemed to be a due process right in BMW v. Gore, though four justices disagreed.^[39] The Court in Cruzan v. Missouri decided that due process is not violated when a state applies "a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state."^[40]

Criticisms of substantive due process

Criticisms of the doctrine continue as in the past. Critics argue that judges are making determinations of policy and morality that properly belong with legislators (i.e. "legislating from the bench"), or argue that judges are reading views into the Constitution that are not really implied by the document, or argue that judges are claiming power to expand the liberty of some people at the expense of other people's liberty (e.g. as in the Dred Scott case), or argue that judges are addressing substance instead of process.

Oliver Wendell Holmes, Jr., a formalist, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents:^[41]

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.

Originalists, such as Supreme Court Justice Thomas, who rejects substantive due process doctrine, and Supreme Court Justice Scalia, who has also questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation"^[42] or an "oxymoron."^[43] Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued 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 seems to have been more about where to apply it, and less about whether it should be applied at all.

Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland^[44] and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will." In his book Democracy and Distrust, non-originalist John Hart Ely criticized "substantive due process" as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase green pastel redness, and was radically undemocratic because it allowed judges to impose substantive values on the political process. Ely argued that the courts should serve to reinforce the democratic process, not to displace the substantive value choices of the people's elected representatives.

The current majority view of the Supreme Court supports substantive due process rights in a number of areas. An alternative to strict originalist theory is advocated by Supreme Court Justice Breyer, one of the Court's supporters of substantive due process rights. Breyer believes the justices need to look at cases in light of how their decisions will promote what he calls "active liberty", the Constitution's aim of promoting participation by citizens in the processes of government. That is an approach that ostensibly emphasizes "the document's underlying values" and looking broadly at a law's purpose and consequences. However, such an approach would also give judges the ability to look very broadly at the consequences and unwritten purpose of constitutional provisions, such as the Due Process Clause, and thereby remove issues from the democratic process.

Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case: "[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments."^[45]

Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process, and instead most originalists believe that such rights should be identified and protected legislatively, or via further constitutional amendments, or via other existing provisions of the Constitution. For example, some substantive due process liberties may be protectable according to the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Most originalists believe that rights should be identified and protected by the majority, either legislatively, or (where the legislature lacks the power) via constitutional amendments.

The perceived scope of the Due Process Clause was originally different than it is today. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African-Americans, a "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment.... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause."^[46] The Thirteenth Amendment ultimately abolished slavery, and removed the federal judiciary from the business of returning fugitive slaves. But until then, it was "scarcely questioned" (as Abraham Lincoln put it) that the Constitution "was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law."^[47]

Judicial Review of substantive due process violations

When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts nowadays primarily use two forms of scrutiny, or judicial review. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used.^[48] In order to pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.

When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. Here a legitimate government interest is enough to pass this review. This means that the government's goal must simply be something that it is acceptable for the government to pursue. The means used by the legislation only have to be reasonable for getting to the government's goals; they need not be the best. Under a rational basis test, the burden of proof is on the challenger. Thus it is rare that laws are overturned after a rational basis test, although this is not unheard of.^[49]

There is also a middle level of scrutiny, called intermediate scrutiny, but it is primarily used in Equal Protection cases rather than in Due Process cases: “The standards of intermediate scrutiny have yet to make an appearance in a due process case.”^[50]

Incorporation of the Bill of Rights into due process

Main article: Incorporation (Bill of Rights)

Incorporation is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's Due Process Clause. Incorporation started in 1897 with a takings case,^[51] continued with Gitlow v. New York (1925) which was a First Amendment case, and accelerated in the 1940s and 1950s. Justice Hugo Black famously favored the jot-for-jot incorporation of the entire Bill of Rights. Justice Felix Frankfurter, however—joined later by Justice John M. Harlan—felt that the federal courts should only apply those sections of the Bill of Rights whose abridgment would deny a "fundamental right". It was the latter course that the Warren Court of the 1960s took, although, almost all of the Bill of Rights has now been incorporated jot-for-jot against the states.

The basis for incorporation is substantive due process regarding enumerated substantive rights, and procedural due process regarding enumerated procedural rights.^[52] The role of the incorporation doctrine in applying the guarantees of the Bill of Rights to the states is just as notable as the use of due process to define new fundamental rights that are not explicitly guaranteed by the Constitution's text. In both cases, the question has been whether the right asserted is "fundamental", so that, just as not all proposed "new" constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.

Some people, such as Justice Black, have argued that the Privileges or Immunities Clause of the Fourteenth Amendment would be a more appropriate textual source for the incorporation doctrine. The Court has not taken that course, and some point to the treatment given to the Privileges or Immunities Clause in the 1873 Slaughterhouse Cases as a reason why. Although, the Slaughterhouse Court did not expressly preclude application of the Bill of Rights to the states, the Clause largely ceased to be invoked in opinions of the Court following the Slaughterhouse Cases, and when incorporation did begin, it was under the rubric of due process. Scholars who share Justice Black's view, such as Akhil Amar, argue that the Framers of the Fourteenth Amendment, like Senator Jacob Howard and Congressman John Bingham, included a Due Process Clause in the Fourteenth Amendment for the following reason: "By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would...have prevented states from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens."^[53]

The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process,^[54] 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.^[55] 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."^[56] 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.

International due process

Various countries recognize some form of due process under customary international law. Although the specifics are often unclear, most nations agree that they should guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they are bound to grant no more rights to aliens than they do to their own citizens—the doctrine of national treatment—which also means that both would be vulnerable to the same deprivations by the government. With the growth of international human rights law and the frequent use of treaties to govern treatment of foreign nationals abroad, the distinction in practice between these two perspectives may be disappearing.

See also

References

Further reading

• "U.S. Constitution: Fifth Amendment". Findlaw.
• Breyer, Stephen (2005). Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf. ISBN 0307263134. 
• Friendly, Henry J. (1975). "Some Kind of Hearing". University of Pennsylvania Law Review 123 (6): 1267–1317. doi:10.2307/3311426. 
• Hawkins, Brian (2006). "The Glucksberg Renaissance: Substantive Due Process since Lawrence v. Texas". Michigan Law Review 105 (2): 409. http://students.law.umich.edu/mlr/archive/105/2/hawkins.pdf. 
• Hyman, Andrew (2005). "The Little Word ‘Due’". Akron Law Review 38: 1. http://www.andrewhyman.com/due.html. 
• Kadish, Sanford H. (1957). "Methodology and Criteria in Due Process Adjudication—A Survey and Criticism". Yale Law Journal 66 (3): 319–363. doi:10.2307/3311426. 
• Madison, P. A. (2008). "A Dummies Guide to Understanding the Fourteenth Amendment". FederalistBlog.us.
• Ring, Kevin (2004). Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice. Washington: Regnery. ISBN 0895260530. 
• Yoshino, Kenji (2006). "The Pressure to Cover: The New Civil Rights". New York Times Magazine. http://www.nytimes.com/2006/01/15/magazine/15gays.html.  → discussing potential of liberty rights to overtake equality rights.

External links

• A Substantive Due Process Challenge to the War on Drugs.
• Civil Rights, Congress's Power, and the New Federalism, Video from American Constitution Society for Law and Policy
• Kuwaiti Family Committee is a site about Kuwaiti detainees' due process arguments.