Thoughts on the due process clauses?

[Geoffrey Howe]

Hugo Black argued - and, I believe, Clarence Thomas in his stead - that the due process clauses are not a restraint on the legislature; that is, no law can be "against" due process because it is by definition due process. So, for example, the 5th/14th Amendment doesn't require proof beyond a reasonable doubt. Thoughts?

Our Constitution provides that no person shall be "deprived of life, liberty, or property, without due process of law."  The four words -- due process of law -- have been the center of substantial legal debate over the years. Some might think that the words themselves are vague. But any possible ambiguity disappears when the phrase is viewed in the light of history and the accepted meaning of those words prior to and at the time our Constitution was written.

"Due process of law" was originally used as a shorthand expression for governmental proceedings according to the "law of the land" as it existed at the time of those proceedings. Both phrases are derived from the laws of England, and have traditionally been regarded as meaning the same thing. The Magna Carta provided that:

"No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land."

Later English statutes reinforced and confirmed these basic freedoms. In 1350, a statute declared that "it is contained in the Great Charter of the Franchises of England that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land..."

Four years later, another statute provided "[t]hat no Man, of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death without being brought in Answer by due Process of the Law."

And, in 1363, it was provided "that no man be taken or imprisoned, nor put out of his freehold, without process of law."

Drawing on these and other sources, Lord Coke, in 1642, concluded that "due process of law" was synonymous with the phrase "by law of the land." One of the earliest cases in this Court to involve the interpretation of the Due Process Clause of the Fifth Amendment declared that "[t]he words, 'due process of law,' were undoubtedly intended to convey the same meaning as the words 'by the law of the land' in Magna Charta."

While it is thus unmistakably clear that "due process of law" means according to "the law of the land," this Court has not consistently defined what "the law of the land" means, and, in my view, members of this Court frequently continue to misconceive the correct interpretation of that phrase. In Murray's Lessee, supra, Mr. Justice Curtis, speaking for the Court, stated:

"The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The 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. To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this, the answer must be two-fold. We must examine the constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country."

Mr. Justice Moody, again speaking for the Court, reaffirmed that "due process of law" meant "by law of the land," but he went on to modify Mr. Justice Curtis' definition of the phrase. He stated:

"First. What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country..."

"Second. It does not follow, however, that a procedure settled in English law at the time of the emigration, and brought to this country and practiced by our ancestors, is an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be fastened upon the American jurisprudence like a straight-jacket, only to be unloosed by constitutional amendment..."

"Third. But, consistently with the requirements of due process, no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizen in his private right, and guard him against the arbitrary action of government."

In those words is found the kernel of the "natural law due process" notion by which this Court frees itself from the limits of a written Constitution and sets itself loose to declare any law unconstitutional that "shocks its conscience," deprives a person of "fundamental fairness," or violates the principles "implicit in the concept of ordered liberty." While this approach has been frequently used in deciding so-called "procedural" questions, it has evolved into a device as easily invoked to declare invalid "substantive" laws that sufficiently shock the consciences of at least five members of this Court. I have set forth at length in prior opinions my own views that this concept is completely at odds with the basic principle that our Government is one of limited powers, and that such an arrogation of unlimited authority by the judiciary cannot be supported by the language or the history of any provision of the Constitution.

In my view, both Mr. Justice Curtis and Mr. Justice Moody gave "due process of law" an unjustifiably broad interpretation. For me, the only correct meaning of that phrase 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. The Due Process Clause, in both the Fifth and Fourteenth Amendments, in and of itself, does not add to those provisions, but, in effect, states that our governments are governments of law, and constitutionally bound to act only according to law.

To some, that view may seem a degrading and ndly view of what is undoubtedly a fundamental part of our basic freedoms.

But that criticism fails to note the historical importance of our Constitution and the virtual revolution in the history of the government of nations that was achieved by forming a government that, from the beginning, had its limits of power set forth in one written document that also made it abundantly clear that all governmental actions affecting life, liberty, and property were to be according to law.

For years, our ancestors had struggled in an attempt to bring England under one written constitution, consolidating in one place all the threads of the fundamental law of that nation. They almost succeeded in that attempt, but it was not until after the American Revolution that men were able to achieve that long-sought goal. But the struggle had not been simply to put all the constitutional law in one document, it was also to make certain that men would be governed by law, not the arbitrary fiat of the man or men in power. Our ancestors' ancestors had known the tyranny of the kings and the rule of man and it was, in my view, in order to insure against such actions that the Founders wrote into our own Magna Carta the fundamental principle of the rule of law, as expressed in the historically meaningful phrase "due process of law." The many decisions of this Court that have found in that phrase a blanket authority to govern the country according to the views of at least five members of this institution have ignored the essential meaning of the very words they invoke. When this Court assumes for itself the power to declare any law -- state or federal -- unconstitutional because it offends the majority's own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the "law of the land," and instead becomes one governed ultimately by the "law of the judges."

It can be, and has been, argued that, when this Court strikes down a legislative act because it offends the idea of "fundamental fairness," it furthers the basic thrust of our Bill of Rights by protecting individual freedom.


But that argument ignores the effect of such decisions on perhaps the most fundamental individual liberty of our people -- the right of each man to participate in the self-government of his society. Our Federal Government was set up as one of limited powers, but it was also given broad power to do all that was "necessary and proper" to carry out its basic purpose of governing the Nation, so long as those powers were not exercised contrary to the limitations set forth in the Constitution. And the States, to the extent they are not restrained by the provisions in that document, were to be left free to govern themselves in accordance with their own views of fairness and decency. Any legislature presumably passes a law because it thinks the end result will help more than hinder, and will thus further the liberty of the society as a whole. The people, through their elected representatives, may, of course, be wrong in making those determinations, but the right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights. The liberty of government by the people, in my opinion, should never be denied by this Court except when the decision of the people, as stated in laws passed by their chosen representatives, conflicts with the express or necessarily implied commands of our Constitution.

citations omitted

[Donerail]

"Rewrite the 14th Amendment" incoming in 5, 4, 3, 2,

[Skill and Chance]

The problem is the late 19th century court already neutered the Privileges and Immunities Clause and courts as institutions are highly deferential to precedent, even when it was ill-thought-out.  The alternative by the WWII era was entirely classes of people having no rights vs. their state/local governments.  Stretching Due Process to the extreme was the only remaining path to revive the original intent of the 14th Amendment. 

[Geoffrey Howe]

The problem is the late 19th century court already neutered the Privileges and Immunities Clause and courts as institutions are highly deferential to precedent, even when it was ill-thought-out.  The alternative by the WWII era was entirely classes of people having no rights vs. their state/local governments.  Stretching Due Process to the extreme was the only remaining path to revive the original intent of the 14th Amendment. 

Surely the Warren and Burger courts would have overruled the Slaughterhouse Cases if they saw fit? Indeed, Black, joined by Douglas, Murphy and Rutledge*, argued for essentially this in 1947.

*Well, not quite; Murphy and Rutledge they argued for unenumerated rights too.

[MarkD]

In terms of the meaning of procedural due process, I agree with Justice Benjamin Curtis, as quoted by Black, and I disagree with Black's explicit rejection of Curtis's interpretation, as well as his overly narrow interpretation of procedural due process. Prof. John Hart Ely had some excellent discussion of this topic in his famous book Democracy and Distrust.

Even if the Due Process Clause were restricted to its proper role of guaranteeing fair procedures, that would not make it unimportant. For even if it lacks authority to second-guess the substantive policy being pursued, the Court can still render the implementation of that policy difficult by making the procedural requirements comparatively stringent. What's more, its judgement here is also somewhat untethered: asking what process is due will get the Court into some questions to which the Constitution does not begin to provide answers. ... It is true that in deciding what process is due the Court will have to take into account various costs, principally in money and time, that the Constitution will not help us assess. But that is hardly unique to due process. And the questions that are relevant here -- how seriously the complainant is being hurt and how much it will cost to give him a more effective hearing -- are importantly different from the question the Court makes relevant in "substantive due process" decisions like Lochner and Roe, namely how desirable or important the substantive policy the legislature has decided to follow is. Moreover ... the decisions here are made in limited compass. The question is what procedures are required to treat the complainant this way, not whether the complainant can be treated this way at all: it's an important and difficult question, but a more limited one. Finally, what procedures are needed fairly to make what decisions are the sorts of questions lawyers and judges are good at. (Observe a lawyer on a committee with nonlawyers and see what role he or she ends up playing.) Thus the delegation, though assuredly it is that, is a limited and not terribly frightening one.

But in the case of In Re Winship, Justice Black was absolutely terrified of letting the courts exercise that much discretion. I believe it terrified him as much as it did because he still had cases such as Griswold v. Connecticut and Harper v. Virginia Board of Election on his mind. I think the Court majority's willingness to get rambunctious with the Bill of Rights in Griswold and with the Equal Protection Clause in Harper worried Black a whole lot for the rest of his days on the Court, and his worrying about that was why he came to the conclusion that he did in Winship.