In that funny movie, Monty Python and the Holy Grail, a woman is tried for the crime of being a witch by placing her on a scale to see if she weighs more than a duck. Laugh now. In 9th Century England, procedure was scarcely better. Commonplace were absurdities such as the “ordeal,” where guilt or innocence might be determined by burning the accused with boiling water or a hot iron, trial by battle – including the use of retained champions – and “compurgation,” the testing of witnesses by a ritualistic chain of oaths which if completed proved innocence or if broken proved guilt.
In 1215 English nobles forced King John to place his seal on the Magna Carta at Runnymede. That document stated in clause 39 “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed—nor will we go upon or send upon him—save by the lawful judgment of his peers or by the law of the land.” It was not until 1354 that clause 39 was re-codified, including “due process of law” in lieu of “save by the lawful judgment of his peers or by the law of the land.”
The Constitution originally had no bill of rights. Federalists argued a bill of rights was more appropriate to an all-powerful monarch, subject only to enumerated rights, than to a limited government, having only the powers vested in it by the people. Yet, to co-opt the opposition, James Madison introduced in the First Congress a bill of rights. Embedded in the Fifth Amendment are the words “nor shall any person be deprived of life, liberty or property without due process of law.”
“No, no!” said the Queen in Alice in Wonderland. “Sentence first — verdict afterwards.” Due process is in the least a guaranty of procedural fairness. As such, due process includes, inter alia, prohibitions against vagueness, the right to notice and a meaningful hearing at a meaningful time, and decisions supported by evidence with law and findings of fact explained. Exigencies and circumstances affect the extent of procedural requirements through balancing tests. In circumstances requiring emergency injunctive relief, minimal notice, if any, is required. Due process is not the same as judicial process. Citizen affiliates of Al Qaeda beware, the executive may kill you without a trial.
Substantive due process is perhaps of a more controversial sort. Under the doctrine of substantive due process, the clause implies unwritten rights denying, in certain circumstances, the power to enact legislation – or otherwise act – to deprive life, liberty or property even with fair procedural application. Legislation that the judiciary finds inherently arbitrary may be voided on substantive due process grounds.
Readers of the Declaration of Independence know that super-legal rights do self-evidently exist and are the source of the authority of the people to govern themselves, but it is hardly a straight path from A to B that it is the role of the judiciary to give natural rights expression as positive law. Further, substantive due process proponents nowadays do not hang their hat on a natural rights peg. Compare the language of Justice Samuel Case in Calder v. Bull (1798) regarding the “principles of the social compact” to that of the “penumbral rights” of Griswold v. Connecticut (1965). In any event, both supporters and detractors alike would be disingenuous to deny that this second sort of “due process” vests somewhat breathtaking power in the judiciary, and raises the critique that by substantive due process legislation may be made without legislative process.
It is important to remember that the due process clause of the Fifth Amendment restricts only federal power. Consequently, since the ratification of the Reconstruction Amendments, applications of substantive due process under the Fifth Amendment have been limited to hard to scratch places where the due process clause of the Fourteenth Amendment does not reach, such as the territories and the District of Columbia. It would not be fair, however, to deny substantive due process under the Fifth Amendment some negative attention it deserves. Perhaps the first Supreme Court case to dive deeply into the waters of substantive due process was Dred Scott v. Sandford (1857), in which, through layered and abominable errors of reasoning, Justice Taney found in the due process clause of the Fifth Amendment a right to property in other human beings that barred Congress from prohibiting slavery in the territories.
March 19, 2012
J. Eric Wise is a partner at the law firm Gibson, Dunn & Crutcher LLP, practicing restructuring and finance.
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