Episode 168: November 16, 2012
by Adam Freedman
Today’s Topic: Constitution 101 – Due Process
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
This is the eighth installment of my new series on the U.S. Constitution and the Bill of Rights. For more on the Constitution, you can check out my earlier episodes on the Legal Lad Constitution page at quickanddirtytips.com, as well as my new book, The Naked Constitution: What the Founders Said, and Why it Still Matters.
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The Due Process Clauses – Both of Them
No phrase in the Constitution has generated as much litigation as “due process.” In fact, the words appear in both the Fifth and Fourteenth Amendments. The Fifth Amendment – ratified as part of the Bill of Rights in 1791 – states that “No person shall . . . . be deprived of life, liberty, or property, without due process of law.” Like the other guarantees of the Bill of Rights, the Fifth Amendment applied only against the federal government.
After the Civil War, however, there was a movement to ensure that the states could not infringe the fundamental rights of citizens, particularly the former slaves. This movement led to the ratification of the Fourteenth Amendment (as well as the Thirteenth and Fifteenth). The Fourteenth Amendment says that no state shall: “deprive any person of life, liberty, or property, without due process of law.”
A Guarantee of Procedural Fairness
Most scholars agree that the “due process” clause was originally understood as a guarantee of judicial fairness in criminal law. The term “due process” had a long history in Anglo-American law as a shorthand expression for well-established procedures like the right to counsel, and the right to appeal. The original idea was to ensure that neither federal nor state courts could forfeit your property, or throw you in prison, or send you to the gallows without all the procedures recognized by the common law.
Substantive Due Process
In the late nineteenth century, however, courts developed the theory that regulatory laws could violate due process. In 1897, the Supreme Court struck down a Louisiana law regulating insurance contracts on the grounds that the due process clauses’ guarantee of “liberty” (as in “life, liberty, and property”) includes liberty of contract. Thus, the Louisiana legislature had violated people’s liberty without affording them due process. This liberty of contract theory is most famously associated with the 1905 Supreme Court case of Lochner v. New York, in which the Court struck down a New York regulation of bakery hours. Lochner was overturned in 1937, but the basic concept that due process is a source of substantive – rather than just procedural – rights survived.
“Incorporation” of the Bill of Rights
In fact, these days, the doctrine of substantive due process is deeply entrenched in the law. The big question is: what is the “substance” guaranteed by due process? The “liberty of contract” theory – as we’ve seen – went out the door in 1937 when Lochner was overturned. Instead, the Court developed the doctrine of “incorporation,” meaning that the guarantees of the Bill of Rights would be read into the Fourteenth Amendment so that they would now apply to the States and not just the federal government. And therefore, ever since the early twentieth century, the Court has from time to time struck down state laws that violate the guarantees of the Bill of Rights – like the right to keep and bear arms.
Other “Fundamental” Rights
In more recent decades, and particularly since the 1950s, the Supreme Court has extended the doctrine of incorporation beyond the Bill of Rights. The Court has held that the Fourteenth Amendment’s due process clause also guarantees certain “fundamental rights,” by which it means rights that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” This doctrine has been used to establish a right to privacy, which has been applied to contraception and abortion decisions in cases like Griswold v Connecticut and Roe v. Wade. It has also been used to uphold a right to marry, but the exact scope of this right are currently in dispute in various cases considering whether states are constitutionally required to recognize same sex marriages.
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