Guest Essayist: J. Eric Wise, partner at Gibson, Dunn & Crutcher LLP law firm

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 

Essay #21 

J. Eric Wise is a partner at the law firm Gibson, Dunn & Crutcher LLP, practicing restructuring and finance.

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3 replies
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    Since Substantive Due Process is a check against arbitrary reasoning, it is always at risk of being arbitrary itself. Substantive Due Process is also like a contradiction in terms because Due Process are civil rights you have to defend yourself in court but Substantive Due Process look at outcomes of laws and legal opinions that affect life outside the courtroom. Of course, any court decision affects life outside the court room; but this device evaluates that life and seeks a desired outcome rather than as a check against a violation of procedural rights within the courtroom.

  2. Linda & Halley
    Linda & Halley says:

    Llinda: If I am not mistaken, the early Maryland colonists thought carefully about providing safeguards by their adoption of the Maryland Act for the Liberties of the People in 1639, although “due process” was first used in New York State’s Constitution of 1787 and then used by Madison. Perhaps our having 13 different colonies with 13 different constitutions was a blessing in disguise! Great essay!

    Halley: Hey, let’s hear it, for Amendment Five! You can’t try me for the same crime twice!

  3. Amber
    Amber says:

    We had some property on a mountain, as you mentioned above. It was in the 90’s when Clinton did a LOT of LAND GRABS! When this amendment says due process, and compensation, the Government is in hopes that you don’t know your rights! You also CAN NOT get a lawyer take a case against “THE GOVERNMENT”, for every one that we spoke with said it wouldn’t do any good because they take what they want one way or another! This property was BEAUTIFUL and we used it as a get away from all the fast paced world around us. I did HOLD OUT as long as I could and got a little more money then what they wanted to steal it for! The fact is, as I told the woman who was calling me every other day about taking our property, when you have something that you worked for and bought because you LOVED it, YOU CANT PUT A PRICE ON IT! Of course THE GOVERNMENT names the price and it was so low that I just had to LAUGH in her EAR at the first offer she made! In the end THE GOVERNMENT GOT MY LAND! The one last thing I told them is that I thought it was A SHAME that THE GOVERNMENT could just come and take what they wanted and that even had they offered me a million dollars I wouldn’t have sold it to them or anyone for that matter. But THE GOVERNMENT USED ABUSE OF POWER TO STEAL MY PROPERTY! and for that I have missed out on taking my Grand Sons to one of the most beautiful places in the world that one day would have been theirs! The biggest kicker is that they are DOING NOTHING WITH OUR PROPERTY! Whats up with that?


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