This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses the due process of law in the United States, its role in law-making, the judiciary’s reflection on it and the current status in the developed nation of the US.
It has been published by Rachit Garg.
Due process of law is a fundamental legal principle that guarantees individuals the right to have their disputes and grievances heard and resolved in a fair and impartial manner. It is an essential element of the American legal system and has been a part of the US Constitution since its inception. The Fifth Amendment to the US Constitution has directed the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment which was ratified in 1868, has used the same words, calling it as the Due Process Clause, which describes legal obligation for the states to abide by. These words provide an assurance to the citizens that all levels of the American government must operate within the law thereby providing fair procedures. The Supreme Court of the United States while deciding on the case of Arnett v. Kennedy (1974) had opined that the Fourteenth Amendment’s Due Process Clause imposes similar procedure due process restrictions upon the states as the Fifth Amendment in respect to the federal government. Generally speaking, the due process procedure requires state actors to provide procedural safeguards before they deprive any individual of their life, liberty, or property associated interest. The due process clause can only be applicable if the mentioned interests are said to be at stake.
In this blog article, we will explore the origins of due process of law in the US, from the early history of the due process clause to the application of the Bill of Rights to the states and beyond. We will also examine the concept of procedural due process, as well as the notion of substantive due process, and explore the landmark case of Medina v. California (1992).
Defining due process of law
Due process of law is a legal principle that is derived from the Fifth Amendment to the United States Constitution. It states that no person shall be deprived of life, liberty, or property without due process of law. This means that the government must provide individuals with a fair and impartial hearing and process before it can take away any of their rights or privileges. It is an essential element of the US legal system and serves to protect individuals from arbitrary and unjust government action. In the US, due process of law is divided into two distinct categories: procedural due process and substantive due process. Procedural due process refers to the procedures that must be followed in order for the government to take away an individual’s rights or privileges. This includes the right to a hearing, the right to be informed of the charges, the right to a fair and impartial trial, and the right to appeal.
Substantive due process, on the other hand, refers to the substantive rights and privileges that are protected by the government. This includes the rights to life, liberty, and property, as well as the right to privacy, freedom of speech, and freedom of religion, among others. Substantive due process has been interpreted over time to include things ranging from the right to work in an ordinary job, to that of marriage, raising children, etc. The ideal case of Lochner v. New York (1905) is where the Supreme Court of the United States discovered that a New York law that regulated working hours of bakers, was ultra vires the Constitution and thereby ruled that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. It is necessary to note that although substantive due process is still invoked in several cases in present times, it does follow criticism.
History of the due process clause
The concept of due process of law has its roots in English common law and was first enshrined in the Magna Carta of 1215. This document, which was written by the English barons to limit the power of the monarchy, stated that “no free man shall be taken or imprisoned…unless by the lawful judgement of his peers or by the law of the land.” This phrase was later interpreted to mean that individuals must be given a fair hearing before they can be deprived of their rights or privileges.
Historically, the due process clause reflected the Magna Carta of Great Britain, in which King John had promised his noblemen that he would only be acting legally and everyone would be subjected to the ordinary processes (procedures) of law. While this promise echoed in the 13th century, Great Britain’s seventeenth century struggles surrounding political and legal regularity, alongside the strong insistence of the American colonies’ during the pre-Revolutionary period as the backdrop, led to an observance of regular legal order. The essence of due process of law is reflected in the government’s legally sound functioning. Every legal system should function with legality that is in a just and fair procedure and this being the sole commitment of the system it is embodied in the due process clause.
The fundamental trait of the due process clause is the promise it makes to the citizens to not deprive them of their right to life, liberty or property thereby vesting a legal duty on the government to maintain the same. It is noteworthy to mention that the government is not restricted to function according to the express operating statutes of the United States but can also function in a way it deems fit provided it is done in a fair and justified manner. The due process clause also signifies that any action that denies the process that is otherwise ‘due’ will ipso facto be termed as unconstitutional.
The Fourteenth Amendment to the US Constitution in light of due process of law
The Fourteenth Amendment to the US Constitution, which was ratified on July 9, 1868, granted citizenship to “all persons born or naturalized in the United States,” which was inclusive of former slaves who were recently freed. In addition to the same, the amendment also prohibited states from depriving any individual “life, liberty or property, without due process of law” or denying “any person who came under its jurisdiction the equal protection of the laws.” The principal father of the Fourteenth Amendment, John Armor Bingham was an Ohio Representative, who also served on the Joint Committee on Reconstruction.
It is ideal to mention that the congressional opponents who had argued against the Fourteenth Amendment were of the opinion that the discussed amendment would be responsible for undermining the legislative power of the states. On the contrary, Bingham was of the belief that appropriate interpretation of the amendment’s “privileges and immunities” clause would make it clear that it was the reflection of most of the rights already present in the first eight amendments of the Bill of Rights. Therefore, it was clear that the amendment required state governments to adhere to similar standards like that of the federal government in protecting the rights of their citizens. Alongside this, as an extension of support to the amendment before the Congress, the founding father had also ensured that the amendment was the fulfillment of the Constitution’s guaranteed right to enjoyment of life, liberty, and property.
The slaughter-house cases
The Slaughter-House Cases were a series of cases that were heard by the US Supreme Court which determined the extent to which the Fourteenth Amendment to the US Constitution could place limits on the legislative powers of the states. While the majority of the court attached a narrow interpretation to the amendment, it was Justice Stephen J. Field’s who dissented with an argument that the amendment safeguarded individuals from state legislation which infringed their “privileges and immunities”, which were guaranteed by the federal Constitution. Field’s dissenting opinion is generally viewed as a significant step towards the modern doctrine of substantive due process, which is a theory developed by the courts for defending those rights that are not explicitly mentioned in the Constitution.
The Miranda decision (1966)
In the case of Miranda v. Arizona (1966), Miranda was arrested at his home and was taken to the police custody where he was made to be identified by the complaining witness. Further interrogated by two police officers for over a period of two hours, Miranda was made to sign his written confession. At the trial, both the oral and written confessions were presented before the jury which resulted in Miranda being held guilty of kidnapping and rape and was therefore sentenced to 20-30 years imprisonment on each count. Miranda had further appealed before the Supreme Court of Arizona, where order was in accordance with the decision made by the trial court thereby concluding that Miranda’s constitutional rights were not violated in obtaining his confession and being used in the trial.
The opinion given by Chief Justice Earl Warren in the case of Miranda v. Arizona (1966) has remained a remarkable one. The opinion required police officials to make the arrested individual aware that the information collected about him, can be used by the government in the form of evidence, alongside the right to be silent and right to counsel, that are available to him. Viewing it as a requirement against the right against self-incrimination guaranteed by the Fifth Amendment to the US Constitution, Warren had provided his opinion. Warren had also recalled the trial of John Lilburne who was the seventeenth-century radical politician, in which Liburne contended that the freedom from compulsory self-incrimination be recognized as one of the fundamental rights of an English subject.
Procedural due process
Procedural due process refers to the procedures that must be followed in order for the government to take away an individual’s rights or privileges. This includes the right to a hearing, the right to be informed of the charges, the right to a fair and impartial trial, and the right to appeal. Procedural due process ensures that the government cannot take away an individual’s rights arbitrarily or without cause. In order to prevent individuals and their interests from being subjected to arbitrary actions of the government thereby putting both at stake, due process requires the procedures that help in application of laws to be handled evenly. Satisfying due process varies from one circumstance to that of the other. One of the prime considerations in the process of determining what procedure to follow so as to reflect abidance of due process, is to understand as to whether the government’s conduct in discussion is a part of a criminal or civil proceeding.
In the case of Medina v. California (1992), the court of law had held that the framework that is needed for an accurate analysis of criminal procedures in line with due process, is a thin inquiry into the nature of the procedure being followed so as to figure out whether it is offensive to the subject-matter of fundamental fairness or not. A balancing test that aids in evaluating the procedure chosen by the government to look into private interest infringement matters, is generally applied by courts in civil cases (Mathews v. Eldridge (1976)).
The instant in the case of Ballard v. Hunter (1907) reflects that the government does deprive individuals of their protected interest without helping in instituting judicial proceedings thereby walking away from application of due process. Such applications are common in both civil and criminal proceedings. In cases of administrative and executive proceedings, denial of due process is observed on the part of the government with them citing that such proceedings are not judicial in nature. The fact that even though such proceedings are not judicial in nature, they may satisfy the requirements of the ‘due process clause’, is generally ignored in these proceedings (as was seen in the case of McMillen v. Anderson (1877)). The due process clause does not mandate judicial review of agency proceedings or agency decisions, as was seen in the case of Moore v. Johnson (1978), where the preclusion of judicial review of decisions of the Veterans Administration regarding veterans’ benefits was upheld.
The decision made in the case of Carfer v. Caldwell (1906) stated that while separation of powers among the three branches of the federal government has been favored by the Constitution, states are said to be enjoying greater flexibility and have been vested with an implied power to determine the extent of separation of powers among the three organs. Therefore, the due process clause can be said to neither prohibit a state from being conferred with judicial responsibilities nor delegate legislative powers to the courts.
Substantive due process
Substantive due process refers to the substantive rights and privileges that are protected by the government. This includes the rights to life, liberty, and property, as well as the right to privacy, freedom of speech, and freedom of religion, among others. Substantive due process ensures that individuals are not deprived of their rights or privileges without a legitimate reason.
The landmark case of Dr. Thomas Bonham had knocked on the doors of the British Court of Common Pleas in 1610 and was heard by Chief Justice Edward Coke. The issue concerned a law that vested the London College of Physicians with the power to imprison anyone who was practicing medicine without a license. Justice Coke was of the opinion that the alleged law was void as it was against common right and reason. This landmark decision has been cited by several American jurists in cases where statutes were in conflict with fundamental laws of the land. This judgment is often held to be an antecedent for both the doctrine of substantive due process and judicial review.
The concept of substantive due process under American law is one of the controversial ones. This form of due process has been put to use in the present century to safeguard individual liberties. Although the concept of substantive due process remains translucent for judges of the US Supreme Court, they have stated that the word ‘liberty’ mentioned in the due process clause, vests fundamental right on the parents to have custody of their children (Santosky v. Krame (1982)). Thus, if one distinguishes between procedural and substantive due process, one can state that if the government feels the need to terminate parental custody (in reference to the above instance), it has to give notice and a hearing opportunity, before doing so, the same will be termed as procedural due process. Whereas, if the government has to terminate the custody, it has to provide compelling reasons that would be serving as an adequate justification for its decision-making, the same would constitute substantive due process.
Usage of substantive due process, initially used to protect economic liberties of individuals, is reflective in the landmark case of Lochner v. New York (1905). As we have talked about this case previously, it is ideal to state that in this case, the US Supreme Court had struck down a New York law that was made up to limit the maximum number of hours for which bakers could work. Observing that the freedom of contract was protected as a fundamental right under the term ‘liberty’ in the due process clause, the Apex Court declared the law to be ultra vires the Constitution.
Further, while deciding the case of Pierce v. Society of Sisters (1925), the Supreme Court declared an Oregon law that prohibited parochial school education as unconstitutional. The reasoning given by the Court for such decision was substantive due process but then after 1937, the same court had withdrawn itself from basing any decision on the ground of substantive due process, for the same being understood as ambiguous.
How can we know whether process is due, when it is due, and what procedures have to be followed
The fact that this heading deals with a substantial set of questions and has remained unanswered for long, tells us that the ‘due process’ concept is purely procedural. When it comes to the judiciary, denial of existing legislations or challenging of certain provisions, make them think beyond the codified procedure thereby throwing light on these questions. The Supreme Court of the United States has long struggled for interpret the substantial aspect of ‘due process’ but have not been able to come to a conclusion thereby limiting its reasoning to the general nature of the relationship between citizens and government.
Back in the 19th century, the actions of the government were simple and limited as the majority of the times it wished to deprive its citizens of life, liberty or property, it was done through criminal law. The Bill of Rights also laid down a few procedures that were to be abided by, for example, the right to a jury trial. The Supreme Court’s opinion in the case of Bi-Metallic Investment Co. v. State Board of Equalization (1915) is worth discussing for it stated that when it came to settling tax levels, it was only politics which was the reflection of citizen’s “power, immediate or remote, over those who make the rule”, that controlled the state’s action. In cases where the dispute surrounded the taxpayer’s individual liability, the taxpayer’ right to hearing (which involved the right to support his allegations by means of contentious arguments). This had by default kept rooms for the state to decide the procedure it is going to provide but restricted states from misusing the same.
The afore-mentioned case established that the Constitution was not in need of ‘due process’ for the purpose of laying down laws. Instead, the ‘due process clause’ comes into application when a state acts against an individual on individualistic grounds thereby imposing threat on their fundamentally secured and codified rights. Individualistic ground signifies certain traits that are exclusive to a particular individual and differs from another individual. The ‘due process clause’ therefore does not govern how a state regulates student discipline in high schools; instead, it looks into how the state applies such regulations to individual students when they are said to be in violation of such regulation. For example, if a student is caught cheating in a state-wide competitive examination, he is said to be in violation of the established regulation concerning that and comes with the purview of ‘due process clause’.
Although the student will be held for violation, another aspect that needs to be looked into is whether alleging the student of cheating by the school amounts to deprivation of his life, liberty and property rights. The ‘due process clause’ shall only come into application if state action is involved, for in case private schools take disciplinary actions against their students, due process clause will not be invoked.
When process is said to be due
In several of its earlier decisions, the Supreme Court of the United States seemed to hint on the fact that only when the guaranteed property rights were at stake, urgent hearings could be subject to postponement in order to make them follow provisional and irreversible action of the government. Scenarios changed after 1970 following the decision in the case of Goldberg v. Kelly (1970). This was a case that arose out of a welfare program that was administered by the state. The court of law in this case had observed that before a state took any action to terminate the benefits of the welfare recipients, it stood mandatory for such a state to provide a hearing opportunity to the recipients, before a hearing officer, on grounds that due process clause required such a hearing to take place.
What procedures are said to be due
As we developed an idea as to when due process apply, there have been cases that have helped to determine the procedures that are said to be constitutionally due. This is a question that is typically raised in cases of criminal trials, where Bill of Rights might provide answers, in cases of civil trials and also administrative proceedings, which were invisible in the legal landscape even after a century of introduction of the due process clause. In the previously discussed case of Goldberg v. Kelly (1970), the court had answered our present issue in hand by stating that it is one of the key responsibilities of the state to provide room for hearing before a judicial officer, who has to be impartial, and which shall include:
- The right to be provided with attorney’s help and aid.
- The right to present evidence before the hearing officer.
- The right to present oral arguments before the hearing officer.
- The opportunity to examine and cross-examine witnesses appearing before the hearing officer.
Following this decision, many had raised arguments against the 1970 decision declaring the same to be divergent instead of being specific and therefore the US Supreme Court had to adopt a discriminating approach in recent times. The Court had noted that the process that will be ‘due’ for a student suspended from school for a considerable period will be different from that of a doctor who has been kept in deprivation of his license to practice medicine. Similarly, the ‘due’ of a process will differ from an accused individual to that of a person alleged to have committed theft. The conclusion that was reached from this observation is that whatever be the situation, there could be no prepared list of the procedures that are always said to be ‘due’. Therefore, what procedures are due cannot have a single uniform answer as what the Constitution requires would be an inevitable dependent upon a situation.
A method of stating as to what procedures are due was developed by a successor case named Mathews v. Eldridge (1976) in which the method discussed could be successful in helping lawyers present due process questions before the courts. Currently, the same approach is used for determining due procedures and resolving questions surrounding the same.
Due process beyond the Bill of Rights
The due process clause of the US Constitution does not only protect the rights listed in the Bill of Rights. This clause has been extended to protect a variety of other rights, including the right to privacy, the right to a fair trial, the right to equal protection under the law, and the right to procedural and substantive due process. This means that the government must provide individuals with a fair and impartial hearing and process before it can take away any of their rights or privileges.
Protection from police power and vagueness in laws
Due process of law also protects individuals from laws that are overly vague or that give the government too much power. Laws must be specific and clear so that individuals know what is expected of them and can act accordingly. Vague laws give the government too much discretion and can lead to arbitrary and unjust punishments.
It is ideal to note that the US Supreme Court had initiated a ‘rights revolution’ in order to initiate a new set of limitations on police searches and interrogations, in light of the dominant model of policing that was prevalent in large parts of the United States. In the notable case of Mapp v. Ohio (1961), the court of law extended exclusionary rule to the states thereby forbidding the usage of evidence obtained by means of illegal search and seizure, in trials. The court in the case of Escobedo v. Illinois (1964) went ahead to state that a suspected individual will be entitled to seek help from an attorney during interrogation by the police officials. Denial of this right will be viewed as a violation of constitutional rights which renders any statement that is made by the suspect inadmissible in the court of law. The decision made in the previously discussed case of Miranda v. Arizona (1966) stated that states are also required to make the suspect acknowledge his rights that are available before the police in cases of custodial interrogations.
The above discussed decisions have been responsible for directly affecting day-to-day investigative activities of police thereby helping in initiating professionalism among police officers. This initiative accelerated as departments reacted to their increased liability by raising recruitment standards along with improving legal training for officers, and also establishing procedures for investigating officers to abide by while moving ahead with arresting of suspects.
Equal protection before the law guaranteed by due process clause
The due process clause of the US Constitution also guarantees individuals the right to equal protection under the law. This means that all individuals must be treated equally and without discrimination. The government must provide equal justice to all individuals, regardless of race, gender, religion, or any other factor.
Equal protection represents the idea that it is not favorable for a government body to deny people equal protection of its governing laws. Therefore, it is the responsibility of the governing body to treat an individual in the same manner as others under similar conditions and circumstances. It is also necessary to acknowledge that a government is given allowance to discriminate against individuals, as long as such discrimination is in terms of equal protection clause. The due process clause of the Fifth Amendment requires the United States government to practice equal protection in terms of its everyday functioning. The equal protection clause as has been provided by the Fourteenth Amendment also requires states to practice equal protection while governing its citizens. Equal protection makes room for a state to be impartial while governing thereby not allowing the state to draw distinctions between individuals solely on irrelevant differences when it comes to fulfilling governmental objectives. Thus, to protect civil rights, the equal protection clause has an imperative role to play. The individuals also have the right to bring in a lawsuit against the state or the deferral government before the court of law if their guaranteed rights are infringed.
An analysis of the case of Medina v. California (1992)
The landmark case of Medina v. California (1992), is a prime example of the US Supreme Court applying the due process clause of the US Constitution to protect individual’s rights. As have already been explained and mentioned in this article previously, the case has received a valid discussion hereunder.
Facts of the case
Medina was held guilty of an alleged first-degree murder. On the basis of his pleading before the California Supreme Court, his motion for a fair hearing pursuant to the prevalent state law that forbidden unsound mind individuals to be tried or punished, was granted. The state law also placed burden on the petitioner to establish presumption of incompetence of the preponderance.
Judgment delivered by the US Supreme Court
Although Medina had defended his conduct, the jury who had empaneled for the competency hearing had established Medina to be competent to stand trial and thereby was convicted and sentenced to death. The US Supreme Court had affirmed the jury’s decision thus rejecting Medina’s claim that his right to due process was violated by the competency statute’s burden of proof and presumption.
Analysis of the judgment delivered by the US Supreme Court
It is necessary to note that the due process clause makes way for a state to require a defendant to face trial and bear the burden of proving preponderance, when claiming incompetence. It is ideal to note that there lies no historical basis that concludes that vesting the burden of proof on a criminal defendant in order to prove his incompetence, is in violation with due process. Further, the Court had reasoned that a state’s allocation of the burden of proof to an accused defendant, does not transgress the principle of fundamental fairness, going by the decision made in the case of Leland v. Oregon (1952), which had upheld a state’s right to place burden of proof on the defendant for pleading insanity and the same is not unconstitutional. Thus the decision made in our discussed case, clears the air that the judgment was fair and reasonable.
Due process of law is a fundamental legal principle that guarantees individuals the right to have their disputes and grievances heard and resolved in a fair and impartial manner. It is an essential element of the American legal system and has been a part of the US Constitution since its inception. This blog article has explored the origins of due process of law in the US, from the early history of the due process clause to the application of the Bill of Rights to the states and beyond. We have also examined the concept of procedural due process, as well as the notion of substantive due process, and explored the landmark case of Medina v. California (1992). Due process of law is a crucial element of our legal system and provides individuals with vital protections against arbitrary and unjust government action. It is essential that we continue to uphold this principle and ensure that individuals are provided with a fair and impartial hearing and process before their rights or privileges can be taken away.
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