#REDIRECT Due process
Due process of law is a legal concept that ensures the government will respect all of a person's legal rights instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. Due process has also been interpreted as placing limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice, and liberty. The legal systems of many nations embrace some variant of this, such as the concept of fundamental justice in Canada. ==International due process== Most countries recognize some form of due process under custom (law) international law. Although the specifics are not clear, there has been consensus that a nation must guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they were bound to grant no more rights to aliens than they did to their own citizens—the doctrine of national treatment—which also means that both would be vulnerable to the same deprivations by the government. With the growth of international human rights law and the frequent use of treaty to govern treatment of foreign nationals abroad, the distinction in practice between these two perspectives has all but disappeared. ==Due process in the United States== The Fifth Amendment to the United States Constitution contains a guarantee of basic due process applicable only to actions of the Government of the United States: "No person shall be... deprived of life, liberty, or property, without due process of law...." The Fourteenth Amendment to the United States Constitution contains the same phrase, but expressly applied to the States. The Supreme Court of the United States has interpreted the two clauses identically, so under the federal Constitution, there is no substantial difference in protection from federal or State action. However, State constitutions also have their own guarantees of due process that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to individuals than under federal law. The Due Process Clause of the U.S. Constitution is descended from a similar clause of the Magna Carta in which the King of England agreed (in the year 1215 A.D.) that "No Freeman shall be taken, or imprisoned, or be disseized of his Freehold, or liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his peers, or by the Law of the Land." Thus, the core historical meaning of the Due Process Clause is that the government cannot deprive anyone if the Law of the Land forbids it. In other words, neither the King nor an American President may take away your life, liberty, or property if the law denies him that power. Due Process under the federal Constitution has additionally been interpreted as a restraint on the ways that legislatures may alter the law, although some judges over the years have objected to stretching the Due Process Clause beyond what was intended by Magna Carta. As a limitation on Congress, the Due Process Clause has been interpreted by the majority of the Supreme Court to have both ''procedural'' and ''substantive'' components, meaning that it imposes restrictions on legal procedures—the ways in which laws may operate—and also on legal substance—what laws may attempt to do or prohibit. The distinction between substance and procedure is difficult in both theory and practice to establish. Moreover, the substantive component of due process has proven to be very controversial, because it gives the U.S. Supreme Court considerable power to strike down state and federal statutes in order to legalize activities that a majority of the judges don't think should have been criminalized in the first place. ===Procedural due process=== Procedural due process is essentially based on the concept of Procedural justice. As a bare minimum, it includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings. In criminal cases, fair procedures help to ensure that an accused person will not be subjected to cruel and unusual punishment, which occurs when an innocent person is wrongly convicted. Criminal prosecutions and civil cases are governed by explicit guarantees of rights under the United States Bill of Rights and as ''incorporated'' under the Fourteenth Amendment to the States (see below). However, when the Constitution has not laid out the specific procedures that must be followed in other government proceedings, due process provides a minimum floor of protection to the individual that statutes, regulations, and enforcement actions must at least meet (but can exceed), in order to ensure that no one is deprived of ''life, liberty, or property'' arbitrarily and without opportunity to affect the judgment or result. This minimum protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being punished, which would be tantamount to cruel and unusual punishment. ====Personal jurisdiction==== Procedural due process places limits on the assertion of personal jurisdiction over a defendant to a lawsuit, limiting the locations where that defendant may be hauled into court. This is of particular relevance in cases involving business transactions conducted across state lines, where the defendant may not have set foot in the other state, but still conducted affairs with the other state's residents through correspondence, the shipment of goods, or indirect agents. This limitation also applies to jurisdiction over foreign defendants in U.S. courts. In a somewhat complicated line of cases, the Supreme Court has required that the defendant had established ''minimum contacts'' with the jurisdiction wishing to act as a forum for the litigation, such that the defendant should not be surprised that he was subject to suit in that location. The defendant must have ''purposefully availed'' himself of the privilege of conducting business within that jurisdiction—intentionally directing his activities at that state and its residents. Simply put, the defendant's actions determine where he can be sued, rather than the actions or movement of the plaintiff. Courts are still working out how this applies to lawsuits regarding Internet activity and business, though they appear to be in agreement that the "passive" posting of a website is not enough to establish widespread jurisdiction wherever someone wants to sue the web author over the contents. A court in one state must have a means of notifying the resident of another (or of a foreign country), to comply with the notice requirement of due process. This is typically done through "long-arm statutes" that provide for service of process upon the defendant in another jurisdiction through agents located or sent there. Because out-of-state defendants can't always be located easily, some state or local laws may allow for service by publication. An example of this would be printing a notice of the lawsuit in a newspaper published where the defendant is believed to reside. Because the failure of a defendant to appear in court results in a default (law) against him, such measures must be sufficiently calculated to give actual notice to the defendant to satisfy due process. ===Incorporation=== Incorporation is the legal doctrine by which the U.S. Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's Due Process Clause. Although incorporation started with ''Gitlow v. New York'' (1925), a First Amendment to the United States Constitution case, it really began in earnest in the 1940s and 1950s. Associate Justice of the Supreme Court of the United States Hugo Black famously favored the jot-for-jot incorporation of the entire Bill of Rights. Justice Felix Frankfurter, however—joined later by Justice John Marshall Harlan II—felt that the federal courts should only apply those sections of the Bill of Rights whose abridgment would deny a "fundamental right." It was the latter course that the Earl Warren Court of the 1960s took, although, in the end, almost all of the Bill of Rights was incorporated against the states. For a detailed article on incorporation, see Incorporation (Bill of Rights). === Substantive due process === ====Defined==== Though on its face, the idea that due ''process'' is not only procedural but substantive seems paradoxical, the Court has - starting with ''Dred Scott v. Sandford'' - endorsed that view. Note that the boundary between substance and procedure is far from exact. The Supreme Court has held for much of its history that due process must include limits not only on how people are put on trial (procedures), but also limits on what kind of control majorities can have over minorities and individuals (substance). The court has viewed the due process clause as embracing those fundamental rights that are "implicit in ordered liberty." Just what these rights are is not always clear. Substantive due process has protected such rights as marriage and raising children, and the extension of much of the Bill of Rights over the States. However, what are seen as past abuses and present excesses of this doctrine continue to spur debate over its use. ====Development and use as a doctrine==== The idea of substantive due process was developed in the nineteenth century, rather than being part of the legacy of Magna Carta. James Madison explained as follows, when he proposed the Bill of Rights to Congress in 1789: "Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed." Magna Carta forbade the King from disobeying Parliament, and the framers of the Bill of Rights (including Madison) understood that Magna Carta did not forbid Parliament from doing anything. Substantive due process was first applied by Supreme Court in a subsection of ''Dred Scott v. Sandford (1856)''. Dred Scott was a slave who claimed that passing into territory where slavery was prohibited destroyed his owner's property rights over him. The court ruled in three parts. First, it argued that Dred Scott was not a citizen of the United States therefore he had no right to liberty under the Constitution of 1856—this argument, now harshly repudiated, is not based on the Due Process clause but did establish that the Court considered Dred Scott to be property. Second, the court argued that no Federal law could exist which per se appropriated property without advance notice and opportunity for judicial review—this was a Due Process argument. Thus, the decision established that the absence of a procedure violates Due Process just as much an unfair procedure. After the Fourteenth Amendment applied due process restrictions to states, the Supreme Court used this same doctrine to protect a liberty of contract by routinely striking down (such as in ''Lochner v. New York'') those economic and labor regulations which restricted particular economic activities per se without opportunity for judicial review. It is also charged that Substantive Due Process developed and became common currency as a consequence of the Court's desire to accommodate the railroads and trusts of the late 19th Century; see also, ''The Supreme Court and it's Great Justices'', Sidney H. Asch, Ch. 4, pp.66-70. As judges became more deferential to legislative judgment in the area of commerce, substantive due process shifted away from upholding laissez-faire economics to recognizing individual rights considered to be fundamental liberty interests. This has included the incorporation of most of the Bill of Rights under the Fourteenth Amendment to apply to the laws and actions of states, as well as the recognition of rights concerning family and privacy not elsewhere in the text of the Constitution. See, for example, ''Griswold v. Connecticut'', where privacy was said to be found in what the Court called the "penumbras" of certain amendments, such as the First, Fourth, and Ninth. Substantive due process has notably been invoked to invalidate laws in such areas as abortion in ''Roe v. Wade'', and most recently in ''Lawrence v. Texas'' regarding the rights of gays and lesbians to sexual intimacy. ====Criticisms of substantive due process==== The same criticisms of the doctrine continue as in the past: that justices are reading their personal views into the Constitution instead of interpreting it. However, the disagreements now are usually much more concerned with what, based on tradition and history, should be embraced under such protections of fundamental liberty rather than whether there are such unspoken guarantees in the Constitution in the first place. Originalism - including two current Supreme Court Justices, Clarence Thomas and Antonin Scalia - stringently reject Substantive Due Process, and believe that due process should only limit legislators with respect to actual due ''process''. Scalia, in particular, has been caustically dismissive of the legitimacy of the doctrine, calling it a "judicial usurpation"). Both Scalia and Thomas, though have occasionally joined Court opinions that do not challenge the doctrine, and have in their dissents taken more to arguing over how substantive due process should be employed based on Court precedent. In other words, the main debate in recent decades within the Court over substantive due process has been more about where to apply it, and less about whether it should be applied at all. ====Judicial review of substantive due process violations==== When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts use two forms of scrutiny, or judicial review. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used. In order to pass strict scrutiny review, the law or act must be narrowly tailored to a compelling government interest. The application of strict scrutiny almost always results in the law being ruled unconstitutional. When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. In order to pass muster under rational basis review, the law or act must be reasonably related to a legitimate governmental interest. Laws examined under rational basis scrutiny are almost always upheld as constitutional. ===Explicit procedural guarantees in the U.S. Constitution=== * Article One (United States Constitution), Section 9: **the right to writs of habeas corpus, except during rebellion or invasion **the prohibition of bill of attainder (conviction and sentencing for a crime, typically treason, by a legislative act) **the prohibition of ex post facto laws (punishing acts not crimes at the time they were committed) *Article Three (United States Constitution), Section 2: **the right to a jury trial regardless of whether the crime occurred in a state or in another location * The Fifth Amendment to the United States Constitution: **the right to a grand jury indictment in federal court, in capital and other "infamous" cases, except for members of the armed forces ** the prohibition of double jeopardy (prosecuting someone again for a crime of which they have already been acquitted) ** the right to not commit self-incrimination ** the right to due process of law for life, liberty, and property (as enforced against the federal government) * The Sixth Amendment to the United States Constitution: ** in all criminal prosecutions: ***the right to a speedy and public trial in the state where the crime occurred ***the right to an impartial jury of one's peers ***the right to know the charges and evidence ***the right to confront and cross-examine opposing witnesses ***the right to compel witnesses to appear ***the right to counsel * The Seventh Amendment to the United States Constitution: ** in civil trials in federal courts: ***the right to a jury in civil trials ***the guarantee that issues determined by a jury will not be redetermined by other courts in a manner contrary to the common law * The Fourteenth Amendment to the United States Constitution, Section 1: **the right to due process of law regarding life, liberty, and property (as enforced against State governments) ==External link== *[http://www.andrewhyman.com/due.html Akron Law Review: The Little Word "Due"] ==Additional resources== ''Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice'' - by Kevin A. Ring. ISBN 0-89526-053-0 Constitutional lawU.S. Constitution International law legal terms
Looks like this page has been comfortably settled for a while now, but I just added a good chunk of information about the incorporation doctrine. Does anyone else feel that it might merit its own page, with the substantive due process section merely mentioning and linking to it? In truth, substantive due process is generally associated with the ''Lochner'' era decisions that placed severe restrictions on laws regulating economic activity, or, more recently, the right to privacy jurisprudence. Incorporation, while it does technically fall under the auspices of substantive due process, is a broad enough topic that it might deserve its own article, even if it's a far smaller one than this main article. Hell, it might even make sense to break this page down into two articles: substantive and procedural due process. Each topic covers a vast area of constitutional law, though they obviously do share the same two constitutional provisions as textual anchors. I'm curious about what others think about splitting them off--are there concerns that, by breaking down and elaborating on many specialized areas of American constitutional law, we'd be exhibiting an American bias? User:SS451 02:32, 25 Aug 2004 (UTC) I totally agree that the "incorporation" section should be moved. Conveniently, an article named Incorporation (Bill of Rights) already exists. I would very much like to move much of the text of the incorporation section to that article. What I shall do, so as to avoid angering anyone, is the following. Right now, I'm going to copy most of the incorporation section text and simply paste it into the separate incorporation article. In about a day, unless I hear objections, I shall erase most of the incorporation section, but let a highly visible link to the incorporation article remain. Best, User:Hydriotaphia 03:48, Dec 26, 2004 (UTC) I have erased the last paragraph of the incorporation section, and placed an edited form thereof in the ''Elk Grove Unified School District v. Newdow'' article, where it belonged due to its subject matter. User:Hydriotaphia 06:27, Dec 26, 2004 (UTC) ---- I just did some reorganizing, to clarify some of the statements about incorporation, as well as to de-Americanize the article. I'm still not satisfied with the relationship of incorporation to substantive due process as described--maybe there's someone out there more familiar with the case history? I'm tempted just to throw the whole incorporation section under substantive due process, though I'm reluctant to consider it just a simple application of that concept. Re: exceptions to incorporation, to my knowledge, the only two provisions of the Bill of Rights that the Supreme Court has explicitly said are NOT incorporated are the grand jury indictment and civil jury provisions. I don't know about the Third, but the Second and the Eight on bails/fines the Court simply hasn't ruled definitively on, though some justices (like O'Connor) and some Circuits on the bails/fines provision have said that it is/should be incorporated. We just don't have an actual Supreme Court majority holding yet. The Court has said that due process does restrict "irrational" fines in some way (even civil jury awards), but it did so without saying that this was coextensive with the Eighth Amendment protection. I wonder if the United States due process law should be given its own section, under Due process (United States) and Due Process Clause, turning this article into a general overview of due process internationally, if that's possible. I know that the concept pops up in international law, but I don't know if other nations actually use the same term. I hope someone can flesh this out to truly internationalize the article, maybe with an overview of the differences and similarities of applications across the world. Good luck! --User:Postdlf 12 January 2004, 18:19 PM (EST)
Also, we need a discussion of the concepts of "notice" and "hearing" under procedural due process. --Postdlf
Hi, I did some fine-tuning of this "due process" entry, for example by inserting quotes from Magna Carta and from James Madison. --Ahyman@aol.com, 21 April 2004. ---- The ruling in Lawrence v. Texas was certainly broad enough to cover private sexual acts whether straight or gays, but the case itself dealt with a law that criminalized only homosexual sodomy. Just calling it a "sodomy" case is misleading as well, and was part of the mistake made in Bowers v. Hardwick according to the Lawrence majority, who thought Bowers trivialized the liberty at issue. They invalidated the anti-sodomy law because it infringed what they saw as a liberty right to intimate sexual conduct between consenting adults in private. That's why it's improper to characterize it as just a "homosexual sodomy" case, or even less properly as a "heterosexual and homosexual sodomy" case. I'm not (yet) going to undo the recent changes in language regarding the controversiality of substantive due process, though I think they are misframing the present situation. There is not a Justice on the bench of the Supreme Court today who opposes substantive due process in its entirety...there is no opposition on the Court (and very little off) as to whether the Clause imposes substantive restraints on legislators. The sole question is what restraints—what traditions do we look to in order to decide what unenumerated rights the Constitution protects as part of "liberty." Read Scalia's dissent in Lawrence and where the debate is at present will become clear. If anyone can contradict this, please do...it's a difficult area of law, but I think that I am right on this. Incorporation especially is accepted without comment in Court opinion after opinion. One question I have is whether Incorporation is properly seen conceptually as part of substantive due process, or whether it is more properly viewed as an entirely separate doctrine. The two seem to merge in my mind, and that is how I have written about it in this article, though I retain doubts. User:Postdlf 4:21 22 Apr 2004 (UTC)
I think this discussion of due process is mostly on track. Postdlf has done a good job. Regarding "substantive due process," Justices Scalia and Thomas are pretty clearly on record stating that it is an "oxymoron." See United States v. Carlton, 512 U.S. 26, 39-40 (1994) (Scalia, J., concurring in the judgment, joined by Thomas, J.). They have argued that there is no such thing as substantive due process, but that procedural due process is okay. Even in the recent Lawrence case, Scalia's dissent argued that "The Fourteenth Amendment expressly allows States to deprive their citizens of 'liberty,' so long as 'due process of law' is provided." Personally, I believe that the framers of the original Constitution did not intend to draw this distinction between substantive and procedural due process, although they certainly employed the distinction in other contexts (e.g. in the Judiciary Act of 1789). For them, the word "process" was a technical term, and so I don't think Scalia and Thomas are 100% right to call substantive due process an "oxymoron." However, the position of Scalia and Thomas is not unprecedented on the Supreme Court, and it appears that some of the Framers of the 14th Amendment probably had the same misunderstanding about "process" that Scalia and Thomas have. My point is not that the Wikipedia article about Due Process should endorse one viewpoint or another, but rather that it should recognize the continuing difference of opinion on this matter. Incidentally, my personal view is that Justice Hugo Black was very close to the truth about all of this, when he wrote that "the only correct meaning of that phrase [due process of law] 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." In Re Winship, 397 U.S. 358, 382 (1970)( Black, J., dissenting). This is basically what Magna Carta said, and I think this is what the framers of the 5th Amendment intended. Due process was mainly a limitation on the executive and judicial branches, and the Court introduced both procedural and substantive due process to limit Congress pretty much sua sponte (i.e. on their own initiative). The slight modifications I've made here and there in the article make the article a bit more neutral about all these issues, without taking any positions. I hope that's helpful. By the way, I'm glad that the Privileges and Immunities Clause was mentioned in this article, because many scholars believe that incorporation is achieved by that clause instead of by the due process clause. Email me if you like, to ahyman@aol.com. I'm user Ferrylodge, and today is April 28, 2004. ---- What Scalia really argued in his dissent in ''Lawrence'' (and Thomas and Rehnquist who joined it) was that substantive due process protected only ''fundamental'' liberty, not just "liberty" period. He doesn't quarrel with unennumerated rights, or with substantive due process protecting ''fundamental'' liberty. At the very least, he has impliedly accepted that it exists as a valid and continuing constitutional doctrine, though the other Justices apply it in circumstances that he wouldn't. Here's the key passage from Scalia's ''Lawrence'' dissent making this clear (which follows right after the previously posted quote):
I have not reviewed Postdlf's most recent changes yet, because they occurred while I was writing this response . . . . As Postdlf has requested, I have reconsidered the degree to which sitting Supreme Court Justices like Scalia and Thomas accept the doctrine called "substantive due process." As I noted previously, I personally disagree with Scalia and Thomas that the word "process" was intended to be a purely procedural term. However, I still submit that Scalia and Thomas do hold this view (as do a large number of legal scholars), judging from their own judicial opinions. I mentioned two cases, in this regard: Carlton and Lawrence, although there are other pertinent cases as well. Postdlf has partly addressed Lawrence, but not Carlton. Here's what Scalia and Thomas said in Carlton: "I believe that the Due Process Clause guarantees no substantive rights, but only (as it says) process." They also wrote: "If I thought that 'substantive due process' were a constitutional right rather than an oxymoron, I would think it violated [in this case]." So there really is no ambiguity about how Scalia and Thomas felt about the doctrine of substantive due process. Now, it could conceivably be that Scalia and Thomas have since changed their minds, or will change their minds in the future. I am not ruling this out. However, the quotes presented by Postdlf are not persuasive that this has occurred. Turning to Lawrence, Postdlf provides the following quote from Scalia's dissent: "Our opinions applying the doctrine known as 'substantive due process' hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called 'heightened scrutiny' protection--that is, rights which are 'deeply rooted in this Nation's history and tradition,'. All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest. (footnotes and citations omitted)" Note the first two words: "Our opinions..." Scalia is arguing that the Court majority is not being consistent with its previous opinions. He is NOT saying that he agrees with those previous opinions. Postdlf also quotes Scalia's footnote 3, but please observe that that footnote occurs in the very paragraph that Postdlf quoted above. (Scalia put footnote 3 immediately before the last sentence that begins with "All other liberty interests . . ."). So Scalia is saying how the Court has rightly construed its previous opinions, and how it has wrongly construed its previous opinions, and is not saying that he agrees with those previous opinions. In the same Lawrence dissent, Scalia took the same approach to stare decisis, chastising the Court's inconsistency in not adhering to the theory of stare decisis that the Court had announced in its Casey decision, even though Scalia deplores that theory. Please note that I'm not trying to advance any personal opinions here. Just trying to be accurate. Even if Scalia and Thomas woke up this morning and decided to repudiate the view that the word "process" refers only to procedure, still a large segment of scholars do believe that. I don't, but they do. Certainly, this was a common view when the 14th Amendment was written, and even Abaraham Lincoln shared that view. See 4 COMPLETE WORKS OF ABRAHAM LINCOLN 211 (John G. Nicolay & John Hay eds., 1894) (1858) (“The Constitution itself impliedly admits that a person may be deprived of property by 'due process of law'”). Also see JOHN BOUVIER, A LAW DICTIONARY ADAPTED TO THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AND OF THE SEVERAL STATES OF THE AMERICAN UNION (6th ed. 1856) (defining “process” as the “means or method of accomplishing a thing”). I will now go and take a look at Postdlf's most recent changes which occurred while I was writing this response, although it might have been more efficient to hash this out in discussion first. Ferrylodge, April 29.
OK, I have just edited the last sentence and a half so that they read as follows: "even they have joined Court opinions that employ the doctrine, and have in their dissents taken more to arguing over how substantive due process should be employed based on Court precedent. In other words, the main debate in recent decades within the Court over substantive due process has been more about where to apply it, and less about whether it should be applied at all." I'm somewhat confident that this is correct, but I'd still appreciate if Postdlf would please cite me a case or two where Scalia and Thomas "joined Court opinions that employ the doctrine." Keep in mind that there's a difference between joining an opinion and concurring in a result. Cheers. Ferrylodge, April 29. ---- ''Washington v. Glucksberg'', for one. The case did not extend the protections of the doctrine to the conduct at issue (assisted suicide), but Rehnquist's majority opinion (at part II) describes substantive due process as a fact under the Due Process Clause, without a hint of criticism, in explaining why the liberty at issue was not fundamental enough to be covered.
Your quote from Glucksberg is as follows:
I've also deleted the assertion that Griswold v. Connecticut was a substantive due process case. I had not previously noticed this assertion. Actually, Griswold is more accurately described as a case involving "penumbras" created by the Bill of Rights. This "penumbra" concept was employed in the Griswold opinion by its author, Justice William O. Douglas, and he based it on things like the Fourth Amendment's guarantee of privacy from unreasonable searches and seizures. Douglas returned to this subject in his opinion concurring with Roe v. Wade (in Roe's companion case of Doe v. Bolton): "There are, of course, those who have believed that the reach of due process in the Fourteenth Amendment included all of the Bill of Rights but went further. Such was the view of Mr. Justice Murphy and Mr. Justice Rutledge. See Adamson v. California, 332 U.S. 46, 123, 124 (dissenting opinion). Perhaps they were right; but it is a bridge that neither I nor those who joined the Court's opinion in Griswold crossed." Douglas did not view Griswold as doing any more than applying the Bill of Rights against the states. Ferrylodge, April 29 ---- You're correct about Douglas's opinion, but the concurrences present a problem with strictly limiting ''Griswold'' to just that line of reasoning. White's concurrence and Goldberg's (which was joined by Brennan and Warren) both explicitly invoked substantive due process (with Goldberg also relying heavily on the Ninth Amendment). How the Court has subsequently addressed it is problematic as well. I could be wrong, but I don't believe that the "penumbra" theory has been used by the Court since—I believe ''Roe'' referred to it, but only in saying that either penumbras or substantive due process could be used to find the relevant privacy interest, and subsequent opinions have just used substantive due process as the basis. ''Washington v. Glucksberg,'' in the blockquote above where it lists "marital privacy" as one of the fundamental liberties protected by substantive due process, actually cited ''Griswold'' for this proposition. How ''Griswold'' specifically acts as a precedent of legal reasoning is murky at the very least. I've been thinking about whether substantive due process should be made into a separate article because of how much there is to discuss. The topic needs to be expanded and some time taken to address each of the fundamental liberties that have been protected under it. Right now the examples are too limited to the more recent controversies of abortion and homosexuality. I'd like to see its application explained in other areas, such as marriage, childrearing, for which there is a longer history of Court application and traditional recognition of those liberties. User:Postdlf 3:30 30 Apr 2004 (UTC)
Sure, it might be useful to have a separate article on SDP. I'd leave this brief summary that we've worked on the way it is, though. It's a quick, handy reference. If you do a separate article, I assume you want to focus on Pierce and Meyer. To me, these cases don't mean a whole heck of a lot, because they were decided in the midst of the Court's other crazy decisions using SDP to prevent economic regulation. Also, Justice Kennedy has pointed out (I think in Troxel v. Granville) that Pierec and Meyer could have been based on the First Amendment instead (freedom of religion and assembly). If you write about these two old cases, don't forget that Justice Holmes wrote a dissent in Meyer, although in a separate companion case. Ferrylodge, April 30
I have just started to focus on Postdlf's list of procedural rights explicitly contained in the Constitution (or maybe someone else wrote this list). I agree with most of them, but not all. The right to receive just compensation for takings (in the 5th Amendment) is a substantive right; uncompensated takings are forbidden no matter what procedures the government uses. Many of the other listed rights are correctly characterized as procedural. Then there are some in a gray area, so I'll leave them for now. But I will delete the Takings Clause. Also, I've clarified the 6th Amendment right to a speedy trial, and added the Article III right to a jury trial (whether the crime is committed in a state or in another location). Ferrylodge, April 30 ---- I didn't create the list, and I had my doubts as to whether that list should be under this topic at all, but when I started editing this article, I didn't want to replace ''everything'' that was previously contributed, so I just cleaned it up. Feel free to change it as you feel necessary. User:Postdlf 2:31 1 May 2004 (UTC) ---- Hi, I just added an external link to an article in the Akron Law Review that provides extensive legal background and references regarding the Due Process Clause in the US Constitution. Seems like this would be a useful supplement to this Wikepedia article that I've helped to edit (see comments above). Ferrylodge, 22 January 2005. ==Incorporation = Substantive Due Process== I must admit that I'm a bit confused as to why incorporation is currently a completely separate section from substantive due process, due to the general justification for incorporation that it involves applying the substantive component of "liberty" under the Due Process Clause of the Fourteenth Amendment to the states. Thus, incorporation is only a subcategory of substantive due process, and our article's organization (as well as the substance of the discussion on incorporation) ought to reflect that. If there are no objections within the next week or so, I will make the necessary organizational changes and add a brief explanation in the article of why incorporation is a specific application of substantive due process. User:SS451 04:03, May 31, 2005 (UTC)
See other meanings of words starting from letter:
Words begining with Due_process:
Due_Process
Due_process
Due_process
Due_Process_Clause
Due_process_clause
Due_Process_Clause_incorporation
Due_Process_Clause_incorporation_of_the_Bill_of_Rights
Due_process_in_the_United_States
Due_Process_of_Law
Due_process_of_law
Due Process
#REDIRECT Due process
Due process
Due process of law is a legal concept that ensures the government will respect all of a person's legal rights instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. Due process has also been interpreted as placing limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice, and liberty. The legal systems of many nations embrace some variant of this, such as the concept of fundamental justice in Canada. ==International due process== Most countries recognize some form of due process under custom (law) international law. Although the specifics are not clear, there has been consensus that a nation must guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they were bound to grant no more rights to aliens than they did to their own citizens—the doctrine of national treatment—which also means that both would be vulnerable to the same deprivations by the government. With the growth of international human rights law and the frequent use of treaty to govern treatment of foreign nationals abroad, the distinction in practice between these two perspectives has all but disappeared. ==Due process in the United States== The Fifth Amendment to the United States Constitution contains a guarantee of basic due process applicable only to actions of the Government of the United States: "No person shall be... deprived of life, liberty, or property, without due process of law...." The Fourteenth Amendment to the United States Constitution contains the same phrase, but expressly applied to the States. The Supreme Court of the United States has interpreted the two clauses identically, so under the federal Constitution, there is no substantial difference in protection from federal or State action. However, State constitutions also have their own guarantees of due process that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to individuals than under federal law. The Due Process Clause of the U.S. Constitution is descended from a similar clause of the Magna Carta in which the King of England agreed (in the year 1215 A.D.) that "No Freeman shall be taken, or imprisoned, or be disseized of his Freehold, or liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his peers, or by the Law of the Land." Thus, the core historical meaning of the Due Process Clause is that the government cannot deprive anyone if the Law of the Land forbids it. In other words, neither the King nor an American President may take away your life, liberty, or property if the law denies him that power. Due Process under the federal Constitution has additionally been interpreted as a restraint on the ways that legislatures may alter the law, although some judges over the years have objected to stretching the Due Process Clause beyond what was intended by Magna Carta. As a limitation on Congress, the Due Process Clause has been interpreted by the majority of the Supreme Court to have both ''procedural'' and ''substantive'' components, meaning that it imposes restrictions on legal procedures—the ways in which laws may operate—and also on legal substance—what laws may attempt to do or prohibit. The distinction between substance and procedure is difficult in both theory and practice to establish. Moreover, the substantive component of due process has proven to be very controversial, because it gives the U.S. Supreme Court considerable power to strike down state and federal statutes in order to legalize activities that a majority of the judges don't think should have been criminalized in the first place. ===Procedural due process=== Procedural due process is essentially based on the concept of Procedural justice. As a bare minimum, it includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings. In criminal cases, fair procedures help to ensure that an accused person will not be subjected to cruel and unusual punishment, which occurs when an innocent person is wrongly convicted. Criminal prosecutions and civil cases are governed by explicit guarantees of rights under the United States Bill of Rights and as ''incorporated'' under the Fourteenth Amendment to the States (see below). However, when the Constitution has not laid out the specific procedures that must be followed in other government proceedings, due process provides a minimum floor of protection to the individual that statutes, regulations, and enforcement actions must at least meet (but can exceed), in order to ensure that no one is deprived of ''life, liberty, or property'' arbitrarily and without opportunity to affect the judgment or result. This minimum protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being punished, which would be tantamount to cruel and unusual punishment. ====Personal jurisdiction==== Procedural due process places limits on the assertion of personal jurisdiction over a defendant to a lawsuit, limiting the locations where that defendant may be hauled into court. This is of particular relevance in cases involving business transactions conducted across state lines, where the defendant may not have set foot in the other state, but still conducted affairs with the other state's residents through correspondence, the shipment of goods, or indirect agents. This limitation also applies to jurisdiction over foreign defendants in U.S. courts. In a somewhat complicated line of cases, the Supreme Court has required that the defendant had established ''minimum contacts'' with the jurisdiction wishing to act as a forum for the litigation, such that the defendant should not be surprised that he was subject to suit in that location. The defendant must have ''purposefully availed'' himself of the privilege of conducting business within that jurisdiction—intentionally directing his activities at that state and its residents. Simply put, the defendant's actions determine where he can be sued, rather than the actions or movement of the plaintiff. Courts are still working out how this applies to lawsuits regarding Internet activity and business, though they appear to be in agreement that the "passive" posting of a website is not enough to establish widespread jurisdiction wherever someone wants to sue the web author over the contents. A court in one state must have a means of notifying the resident of another (or of a foreign country), to comply with the notice requirement of due process. This is typically done through "long-arm statutes" that provide for service of process upon the defendant in another jurisdiction through agents located or sent there. Because out-of-state defendants can't always be located easily, some state or local laws may allow for service by publication. An example of this would be printing a notice of the lawsuit in a newspaper published where the defendant is believed to reside. Because the failure of a defendant to appear in court results in a default (law) against him, such measures must be sufficiently calculated to give actual notice to the defendant to satisfy due process. ===Incorporation=== Incorporation is the legal doctrine by which the U.S. Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's Due Process Clause. Although incorporation started with ''Gitlow v. New York'' (1925), a First Amendment to the United States Constitution case, it really began in earnest in the 1940s and 1950s. Associate Justice of the Supreme Court of the United States Hugo Black famously favored the jot-for-jot incorporation of the entire Bill of Rights. Justice Felix Frankfurter, however—joined later by Justice John Marshall Harlan II—felt that the federal courts should only apply those sections of the Bill of Rights whose abridgment would deny a "fundamental right." It was the latter course that the Earl Warren Court of the 1960s took, although, in the end, almost all of the Bill of Rights was incorporated against the states. For a detailed article on incorporation, see Incorporation (Bill of Rights). === Substantive due process === ====Defined==== Though on its face, the idea that due ''process'' is not only procedural but substantive seems paradoxical, the Court has - starting with ''Dred Scott v. Sandford'' - endorsed that view. Note that the boundary between substance and procedure is far from exact. The Supreme Court has held for much of its history that due process must include limits not only on how people are put on trial (procedures), but also limits on what kind of control majorities can have over minorities and individuals (substance). The court has viewed the due process clause as embracing those fundamental rights that are "implicit in ordered liberty." Just what these rights are is not always clear. Substantive due process has protected such rights as marriage and raising children, and the extension of much of the Bill of Rights over the States. However, what are seen as past abuses and present excesses of this doctrine continue to spur debate over its use. ====Development and use as a doctrine==== The idea of substantive due process was developed in the nineteenth century, rather than being part of the legacy of Magna Carta. James Madison explained as follows, when he proposed the Bill of Rights to Congress in 1789: "Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed." Magna Carta forbade the King from disobeying Parliament, and the framers of the Bill of Rights (including Madison) understood that Magna Carta did not forbid Parliament from doing anything. Substantive due process was first applied by Supreme Court in a subsection of ''Dred Scott v. Sandford (1856)''. Dred Scott was a slave who claimed that passing into territory where slavery was prohibited destroyed his owner's property rights over him. The court ruled in three parts. First, it argued that Dred Scott was not a citizen of the United States therefore he had no right to liberty under the Constitution of 1856—this argument, now harshly repudiated, is not based on the Due Process clause but did establish that the Court considered Dred Scott to be property. Second, the court argued that no Federal law could exist which per se appropriated property without advance notice and opportunity for judicial review—this was a Due Process argument. Thus, the decision established that the absence of a procedure violates Due Process just as much an unfair procedure. After the Fourteenth Amendment applied due process restrictions to states, the Supreme Court used this same doctrine to protect a liberty of contract by routinely striking down (such as in ''Lochner v. New York'') those economic and labor regulations which restricted particular economic activities per se without opportunity for judicial review. It is also charged that Substantive Due Process developed and became common currency as a consequence of the Court's desire to accommodate the railroads and trusts of the late 19th Century; see also, ''The Supreme Court and it's Great Justices'', Sidney H. Asch, Ch. 4, pp.66-70. As judges became more deferential to legislative judgment in the area of commerce, substantive due process shifted away from upholding laissez-faire economics to recognizing individual rights considered to be fundamental liberty interests. This has included the incorporation of most of the Bill of Rights under the Fourteenth Amendment to apply to the laws and actions of states, as well as the recognition of rights concerning family and privacy not elsewhere in the text of the Constitution. See, for example, ''Griswold v. Connecticut'', where privacy was said to be found in what the Court called the "penumbras" of certain amendments, such as the First, Fourth, and Ninth. Substantive due process has notably been invoked to invalidate laws in such areas as abortion in ''Roe v. Wade'', and most recently in ''Lawrence v. Texas'' regarding the rights of gays and lesbians to sexual intimacy. ====Criticisms of substantive due process==== The same criticisms of the doctrine continue as in the past: that justices are reading their personal views into the Constitution instead of interpreting it. However, the disagreements now are usually much more concerned with what, based on tradition and history, should be embraced under such protections of fundamental liberty rather than whether there are such unspoken guarantees in the Constitution in the first place. Originalism - including two current Supreme Court Justices, Clarence Thomas and Antonin Scalia - stringently reject Substantive Due Process, and believe that due process should only limit legislators with respect to actual due ''process''. Scalia, in particular, has been caustically dismissive of the legitimacy of the doctrine, calling it a "judicial usurpation"). Both Scalia and Thomas, though have occasionally joined Court opinions that do not challenge the doctrine, and have in their dissents taken more to arguing over how substantive due process should be employed based on Court precedent. In other words, the main debate in recent decades within the Court over substantive due process has been more about where to apply it, and less about whether it should be applied at all. ====Judicial review of substantive due process violations==== When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts use two forms of scrutiny, or judicial review. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used. In order to pass strict scrutiny review, the law or act must be narrowly tailored to a compelling government interest. The application of strict scrutiny almost always results in the law being ruled unconstitutional. When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. In order to pass muster under rational basis review, the law or act must be reasonably related to a legitimate governmental interest. Laws examined under rational basis scrutiny are almost always upheld as constitutional. ===Explicit procedural guarantees in the U.S. Constitution=== * Article One (United States Constitution), Section 9: **the right to writs of habeas corpus, except during rebellion or invasion **the prohibition of bill of attainder (conviction and sentencing for a crime, typically treason, by a legislative act) **the prohibition of ex post facto laws (punishing acts not crimes at the time they were committed) *Article Three (United States Constitution), Section 2: **the right to a jury trial regardless of whether the crime occurred in a state or in another location * The Fifth Amendment to the United States Constitution: **the right to a grand jury indictment in federal court, in capital and other "infamous" cases, except for members of the armed forces ** the prohibition of double jeopardy (prosecuting someone again for a crime of which they have already been acquitted) ** the right to not commit self-incrimination ** the right to due process of law for life, liberty, and property (as enforced against the federal government) * The Sixth Amendment to the United States Constitution: ** in all criminal prosecutions: ***the right to a speedy and public trial in the state where the crime occurred ***the right to an impartial jury of one's peers ***the right to know the charges and evidence ***the right to confront and cross-examine opposing witnesses ***the right to compel witnesses to appear ***the right to counsel * The Seventh Amendment to the United States Constitution: ** in civil trials in federal courts: ***the right to a jury in civil trials ***the guarantee that issues determined by a jury will not be redetermined by other courts in a manner contrary to the common law * The Fourteenth Amendment to the United States Constitution, Section 1: **the right to due process of law regarding life, liberty, and property (as enforced against State governments) ==External link== *[http://www.andrewhyman.com/due.html Akron Law Review: The Little Word "Due"] ==Additional resources== ''Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice'' - by Kevin A. Ring. ISBN 0-89526-053-0 Constitutional lawU.S. Constitution International law legal terms
Due process
Looks like this page has been comfortably settled for a while now, but I just added a good chunk of information about the incorporation doctrine. Does anyone else feel that it might merit its own page, with the substantive due process section merely mentioning and linking to it? In truth, substantive due process is generally associated with the ''Lochner'' era decisions that placed severe restrictions on laws regulating economic activity, or, more recently, the right to privacy jurisprudence. Incorporation, while it does technically fall under the auspices of substantive due process, is a broad enough topic that it might deserve its own article, even if it's a far smaller one than this main article. Hell, it might even make sense to break this page down into two articles: substantive and procedural due process. Each topic covers a vast area of constitutional law, though they obviously do share the same two constitutional provisions as textual anchors. I'm curious about what others think about splitting them off--are there concerns that, by breaking down and elaborating on many specialized areas of American constitutional law, we'd be exhibiting an American bias? User:SS451 02:32, 25 Aug 2004 (UTC) I totally agree that the "incorporation" section should be moved. Conveniently, an article named Incorporation (Bill of Rights) already exists. I would very much like to move much of the text of the incorporation section to that article. What I shall do, so as to avoid angering anyone, is the following. Right now, I'm going to copy most of the incorporation section text and simply paste it into the separate incorporation article. In about a day, unless I hear objections, I shall erase most of the incorporation section, but let a highly visible link to the incorporation article remain. Best, User:Hydriotaphia 03:48, Dec 26, 2004 (UTC) I have erased the last paragraph of the incorporation section, and placed an edited form thereof in the ''Elk Grove Unified School District v. Newdow'' article, where it belonged due to its subject matter. User:Hydriotaphia 06:27, Dec 26, 2004 (UTC) ---- I just did some reorganizing, to clarify some of the statements about incorporation, as well as to de-Americanize the article. I'm still not satisfied with the relationship of incorporation to substantive due process as described--maybe there's someone out there more familiar with the case history? I'm tempted just to throw the whole incorporation section under substantive due process, though I'm reluctant to consider it just a simple application of that concept. Re: exceptions to incorporation, to my knowledge, the only two provisions of the Bill of Rights that the Supreme Court has explicitly said are NOT incorporated are the grand jury indictment and civil jury provisions. I don't know about the Third, but the Second and the Eight on bails/fines the Court simply hasn't ruled definitively on, though some justices (like O'Connor) and some Circuits on the bails/fines provision have said that it is/should be incorporated. We just don't have an actual Supreme Court majority holding yet. The Court has said that due process does restrict "irrational" fines in some way (even civil jury awards), but it did so without saying that this was coextensive with the Eighth Amendment protection. I wonder if the United States due process law should be given its own section, under Due process (United States) and Due Process Clause, turning this article into a general overview of due process internationally, if that's possible. I know that the concept pops up in international law, but I don't know if other nations actually use the same term. I hope someone can flesh this out to truly internationalize the article, maybe with an overview of the differences and similarities of applications across the world. Good luck! --User:Postdlf 12 January 2004, 18:19 PM (EST)
Also, we need a discussion of the concepts of "notice" and "hearing" under procedural due process. --Postdlf
Hi, I did some fine-tuning of this "due process" entry, for example by inserting quotes from Magna Carta and from James Madison. --Ahyman@aol.com, 21 April 2004. ---- The ruling in Lawrence v. Texas was certainly broad enough to cover private sexual acts whether straight or gays, but the case itself dealt with a law that criminalized only homosexual sodomy. Just calling it a "sodomy" case is misleading as well, and was part of the mistake made in Bowers v. Hardwick according to the Lawrence majority, who thought Bowers trivialized the liberty at issue. They invalidated the anti-sodomy law because it infringed what they saw as a liberty right to intimate sexual conduct between consenting adults in private. That's why it's improper to characterize it as just a "homosexual sodomy" case, or even less properly as a "heterosexual and homosexual sodomy" case. I'm not (yet) going to undo the recent changes in language regarding the controversiality of substantive due process, though I think they are misframing the present situation. There is not a Justice on the bench of the Supreme Court today who opposes substantive due process in its entirety...there is no opposition on the Court (and very little off) as to whether the Clause imposes substantive restraints on legislators. The sole question is what restraints—what traditions do we look to in order to decide what unenumerated rights the Constitution protects as part of "liberty." Read Scalia's dissent in Lawrence and where the debate is at present will become clear. If anyone can contradict this, please do...it's a difficult area of law, but I think that I am right on this. Incorporation especially is accepted without comment in Court opinion after opinion. One question I have is whether Incorporation is properly seen conceptually as part of substantive due process, or whether it is more properly viewed as an entirely separate doctrine. The two seem to merge in my mind, and that is how I have written about it in this article, though I retain doubts. User:Postdlf 4:21 22 Apr 2004 (UTC)
I think this discussion of due process is mostly on track. Postdlf has done a good job. Regarding "substantive due process," Justices Scalia and Thomas are pretty clearly on record stating that it is an "oxymoron." See United States v. Carlton, 512 U.S. 26, 39-40 (1994) (Scalia, J., concurring in the judgment, joined by Thomas, J.). They have argued that there is no such thing as substantive due process, but that procedural due process is okay. Even in the recent Lawrence case, Scalia's dissent argued that "The Fourteenth Amendment expressly allows States to deprive their citizens of 'liberty,' so long as 'due process of law' is provided." Personally, I believe that the framers of the original Constitution did not intend to draw this distinction between substantive and procedural due process, although they certainly employed the distinction in other contexts (e.g. in the Judiciary Act of 1789). For them, the word "process" was a technical term, and so I don't think Scalia and Thomas are 100% right to call substantive due process an "oxymoron." However, the position of Scalia and Thomas is not unprecedented on the Supreme Court, and it appears that some of the Framers of the 14th Amendment probably had the same misunderstanding about "process" that Scalia and Thomas have. My point is not that the Wikipedia article about Due Process should endorse one viewpoint or another, but rather that it should recognize the continuing difference of opinion on this matter. Incidentally, my personal view is that Justice Hugo Black was very close to the truth about all of this, when he wrote that "the only correct meaning of that phrase [due process of law] 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." In Re Winship, 397 U.S. 358, 382 (1970)( Black, J., dissenting). This is basically what Magna Carta said, and I think this is what the framers of the 5th Amendment intended. Due process was mainly a limitation on the executive and judicial branches, and the Court introduced both procedural and substantive due process to limit Congress pretty much sua sponte (i.e. on their own initiative). The slight modifications I've made here and there in the article make the article a bit more neutral about all these issues, without taking any positions. I hope that's helpful. By the way, I'm glad that the Privileges and Immunities Clause was mentioned in this article, because many scholars believe that incorporation is achieved by that clause instead of by the due process clause. Email me if you like, to ahyman@aol.com. I'm user Ferrylodge, and today is April 28, 2004. ---- What Scalia really argued in his dissent in ''Lawrence'' (and Thomas and Rehnquist who joined it) was that substantive due process protected only ''fundamental'' liberty, not just "liberty" period. He doesn't quarrel with unennumerated rights, or with substantive due process protecting ''fundamental'' liberty. At the very least, he has impliedly accepted that it exists as a valid and continuing constitutional doctrine, though the other Justices apply it in circumstances that he wouldn't. Here's the key passage from Scalia's ''Lawrence'' dissent making this clear (which follows right after the previously posted quote):
Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection--that is, rights which are "'deeply rooted in this Nation's history and tradition,'". All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest. (footnotes and citations omitted)Footnote 3 of his dissent shows that even Scalia believes that rational basis review may strike other laws that don't violate fundamental liberty interests, but are simply insufficiently justified.
The Court is quite right that "history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." An asserted "fundamental liberty interest" must not only be "deeply rooted in this Nation's history and tradition," but it must also be "implicit in the concept of ordered liberty," so that "neither liberty nor justice would exist if [it] were sacrificed." Moreover, liberty interests unsupported by history and tradition, though not deserving of "heightened scrutiny," are still protected from state laws that are not rationally related to any legitimate state interest. (citations omitted)As I originally wrote in this article, the ''only'' disagreement among the present Court and among the vast majority of present legal scholars is where to apply substantive protections under due process, not if. I'm not going to undo your changes right now—I hope that reconsidering this, you'll find a better way to state the issue yourself, because the current language overstates the disagreement. If not, I'll tackle this article again later when finals are over... ; ) User:Postdlf 3:54 29 Apr 2004 (UTC) ---- Ferrylodge, hopefully we'll both be happy with the last edit I did to the final paragraph. You're right about Scalia and Thomas believing that substantive due process is a bad doctrine, but they have taken more to arguing that the Court is misapplying it rather than stubbornly asserting every time the issue arises that the doctrine is invalid (though I think Scalia's continued use of quotation marks around "substantive due process" are intended scornfully). I think my last changes reflect this pretty well. So we were both right, basically. Don't you love when that happens? User:Postdlf 14:23 29 Apr 2004 (UTC)
I have not reviewed Postdlf's most recent changes yet, because they occurred while I was writing this response . . . . As Postdlf has requested, I have reconsidered the degree to which sitting Supreme Court Justices like Scalia and Thomas accept the doctrine called "substantive due process." As I noted previously, I personally disagree with Scalia and Thomas that the word "process" was intended to be a purely procedural term. However, I still submit that Scalia and Thomas do hold this view (as do a large number of legal scholars), judging from their own judicial opinions. I mentioned two cases, in this regard: Carlton and Lawrence, although there are other pertinent cases as well. Postdlf has partly addressed Lawrence, but not Carlton. Here's what Scalia and Thomas said in Carlton: "I believe that the Due Process Clause guarantees no substantive rights, but only (as it says) process." They also wrote: "If I thought that 'substantive due process' were a constitutional right rather than an oxymoron, I would think it violated [in this case]." So there really is no ambiguity about how Scalia and Thomas felt about the doctrine of substantive due process. Now, it could conceivably be that Scalia and Thomas have since changed their minds, or will change their minds in the future. I am not ruling this out. However, the quotes presented by Postdlf are not persuasive that this has occurred. Turning to Lawrence, Postdlf provides the following quote from Scalia's dissent: "Our opinions applying the doctrine known as 'substantive due process' hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called 'heightened scrutiny' protection--that is, rights which are 'deeply rooted in this Nation's history and tradition,'. All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest. (footnotes and citations omitted)" Note the first two words: "Our opinions..." Scalia is arguing that the Court majority is not being consistent with its previous opinions. He is NOT saying that he agrees with those previous opinions. Postdlf also quotes Scalia's footnote 3, but please observe that that footnote occurs in the very paragraph that Postdlf quoted above. (Scalia put footnote 3 immediately before the last sentence that begins with "All other liberty interests . . ."). So Scalia is saying how the Court has rightly construed its previous opinions, and how it has wrongly construed its previous opinions, and is not saying that he agrees with those previous opinions. In the same Lawrence dissent, Scalia took the same approach to stare decisis, chastising the Court's inconsistency in not adhering to the theory of stare decisis that the Court had announced in its Casey decision, even though Scalia deplores that theory. Please note that I'm not trying to advance any personal opinions here. Just trying to be accurate. Even if Scalia and Thomas woke up this morning and decided to repudiate the view that the word "process" refers only to procedure, still a large segment of scholars do believe that. I don't, but they do. Certainly, this was a common view when the 14th Amendment was written, and even Abaraham Lincoln shared that view. See 4 COMPLETE WORKS OF ABRAHAM LINCOLN 211 (John G. Nicolay & John Hay eds., 1894) (1858) (“The Constitution itself impliedly admits that a person may be deprived of property by 'due process of law'”). Also see JOHN BOUVIER, A LAW DICTIONARY ADAPTED TO THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AND OF THE SEVERAL STATES OF THE AMERICAN UNION (6th ed. 1856) (defining “process” as the “means or method of accomplishing a thing”). I will now go and take a look at Postdlf's most recent changes which occurred while I was writing this response, although it might have been more efficient to hash this out in discussion first. Ferrylodge, April 29.
OK, I have just edited the last sentence and a half so that they read as follows: "even they have joined Court opinions that employ the doctrine, and have in their dissents taken more to arguing over how substantive due process should be employed based on Court precedent. In other words, the main debate in recent decades within the Court over substantive due process has been more about where to apply it, and less about whether it should be applied at all." I'm somewhat confident that this is correct, but I'd still appreciate if Postdlf would please cite me a case or two where Scalia and Thomas "joined Court opinions that employ the doctrine." Keep in mind that there's a difference between joining an opinion and concurring in a result. Cheers. Ferrylodge, April 29. ---- ''Washington v. Glucksberg'', for one. The case did not extend the protections of the doctrine to the conduct at issue (assisted suicide), but Rehnquist's majority opinion (at part II) describes substantive due process as a fact under the Due Process Clause, without a hint of criticism, in explaining why the liberty at issue was not fundamental enough to be covered.
The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.521 U.S. 702, 719-20 (1997) (citations and footnotes omitted). Scalia and Thomas both joined Rehnquist's opinion without issuing separate concurrences. Now something could be made of the fact that they merely joined an opinion that refused to extend a substantive due process protection, but the Court declined protection by applying the doctrine and defining its limits, without any question as to the doctrine's validity (as is clear from Rehnquist's very affirmative language, admittedly different from Scalia's ''Lawrence'' dissent). I agree that Scalia and Thomas did not likely have a change of heart on this issue. However, they've definitely changed their stance by not raising a frontal assault on substantive due process every time it comes up, finding it more effective to use it to limit it rather than just deny it. The ground they've given on this has unavoidably strengthened the doctrine by their implicit acceptance and has effectively removed the debate over its existence from Court opinions (compare it with Brennan and Marshall's unyielding insistence that the death penalty was unconstitutional in every death penalty case towards the latter part of their tenures). I'm fine with the last changes you made to the article, so we're in agreement on the current language of the last paragraph. It's good to see another legal thinker on here. User:Postdlf 7:14 29 Apr 2004 (UTC)
Your quote from Glucksberg is as follows:
The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.The third and fourth sentences merely describe the Court's previous cases. The first sentence is completely uncontroversial, because everyone agrees that the Due Process Clause forbids the executive branch from doing stuff procedurally or substantively if it is forbidden to do so by law, even if the liberty threatened is more subtle than liberty from physical restraint (all of this is approximately the original meaning from Magna Carta which has nothing to do with procedural due process or substantive due process). That leaves the second sentence of your Glucksberg quote: "The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests." Seems to me that this just clarifies the previous statement that "liberty" means more than liberty from physical restraint. So, I'm very dubious that Scalia and Thomas have joined Court opinions that employ the doctrine, except in the technical sense that the doctrine may have been employed in dicta. I have slightly edited the paragraph in question, so that it says Scalia and Thomas have joined opinions that "do not challenge" substantive due process instead of opinions that "employ" substantive due process. However, I'm open to any further case cites that show Scalia and Thomas have voted to employ this doctrine. Ferrylodge, April 29. :That's fine...I was myself thinking that "employ" was a poor choice of words. I think "do not challenge" may be too far in the opposite direction (maybe "recognize"?), and I don't think ''Glucksberg's'' use of it was merely dicta, but your change is good enough for me in the current context of the paragraph. User:Postdlf 2:56 30 Apr 2004 (UTC)
I've also deleted the assertion that Griswold v. Connecticut was a substantive due process case. I had not previously noticed this assertion. Actually, Griswold is more accurately described as a case involving "penumbras" created by the Bill of Rights. This "penumbra" concept was employed in the Griswold opinion by its author, Justice William O. Douglas, and he based it on things like the Fourth Amendment's guarantee of privacy from unreasonable searches and seizures. Douglas returned to this subject in his opinion concurring with Roe v. Wade (in Roe's companion case of Doe v. Bolton): "There are, of course, those who have believed that the reach of due process in the Fourteenth Amendment included all of the Bill of Rights but went further. Such was the view of Mr. Justice Murphy and Mr. Justice Rutledge. See Adamson v. California, 332 U.S. 46, 123, 124 (dissenting opinion). Perhaps they were right; but it is a bridge that neither I nor those who joined the Court's opinion in Griswold crossed." Douglas did not view Griswold as doing any more than applying the Bill of Rights against the states. Ferrylodge, April 29 ---- You're correct about Douglas's opinion, but the concurrences present a problem with strictly limiting ''Griswold'' to just that line of reasoning. White's concurrence and Goldberg's (which was joined by Brennan and Warren) both explicitly invoked substantive due process (with Goldberg also relying heavily on the Ninth Amendment). How the Court has subsequently addressed it is problematic as well. I could be wrong, but I don't believe that the "penumbra" theory has been used by the Court since—I believe ''Roe'' referred to it, but only in saying that either penumbras or substantive due process could be used to find the relevant privacy interest, and subsequent opinions have just used substantive due process as the basis. ''Washington v. Glucksberg,'' in the blockquote above where it lists "marital privacy" as one of the fundamental liberties protected by substantive due process, actually cited ''Griswold'' for this proposition. How ''Griswold'' specifically acts as a precedent of legal reasoning is murky at the very least. I've been thinking about whether substantive due process should be made into a separate article because of how much there is to discuss. The topic needs to be expanded and some time taken to address each of the fundamental liberties that have been protected under it. Right now the examples are too limited to the more recent controversies of abortion and homosexuality. I'd like to see its application explained in other areas, such as marriage, childrearing, for which there is a longer history of Court application and traditional recognition of those liberties. User:Postdlf 3:30 30 Apr 2004 (UTC)
Sure, it might be useful to have a separate article on SDP. I'd leave this brief summary that we've worked on the way it is, though. It's a quick, handy reference. If you do a separate article, I assume you want to focus on Pierce and Meyer. To me, these cases don't mean a whole heck of a lot, because they were decided in the midst of the Court's other crazy decisions using SDP to prevent economic regulation. Also, Justice Kennedy has pointed out (I think in Troxel v. Granville) that Pierec and Meyer could have been based on the First Amendment instead (freedom of religion and assembly). If you write about these two old cases, don't forget that Justice Holmes wrote a dissent in Meyer, although in a separate companion case. Ferrylodge, April 30
I have just started to focus on Postdlf's list of procedural rights explicitly contained in the Constitution (or maybe someone else wrote this list). I agree with most of them, but not all. The right to receive just compensation for takings (in the 5th Amendment) is a substantive right; uncompensated takings are forbidden no matter what procedures the government uses. Many of the other listed rights are correctly characterized as procedural. Then there are some in a gray area, so I'll leave them for now. But I will delete the Takings Clause. Also, I've clarified the 6th Amendment right to a speedy trial, and added the Article III right to a jury trial (whether the crime is committed in a state or in another location). Ferrylodge, April 30 ---- I didn't create the list, and I had my doubts as to whether that list should be under this topic at all, but when I started editing this article, I didn't want to replace ''everything'' that was previously contributed, so I just cleaned it up. Feel free to change it as you feel necessary. User:Postdlf 2:31 1 May 2004 (UTC) ---- Hi, I just added an external link to an article in the Akron Law Review that provides extensive legal background and references regarding the Due Process Clause in the US Constitution. Seems like this would be a useful supplement to this Wikepedia article that I've helped to edit (see comments above). Ferrylodge, 22 January 2005. ==Incorporation = Substantive Due Process== I must admit that I'm a bit confused as to why incorporation is currently a completely separate section from substantive due process, due to the general justification for incorporation that it involves applying the substantive component of "liberty" under the Due Process Clause of the Fourteenth Amendment to the states. Thus, incorporation is only a subcategory of substantive due process, and our article's organization (as well as the substance of the discussion on incorporation) ought to reflect that. If there are no objections within the next week or so, I will make the necessary organizational changes and add a brief explanation in the article of why incorporation is a specific application of substantive due process. User:SS451 04:03, May 31, 2005 (UTC)
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D
DA | DB | DC | DE | DF | DG | DH | DI | DJ | DK | DL | DM | DN | DO | DP | DR | DS | DT | DU | DW | DX | DY | DZ |Words begining with Due_process:
Due_Process
Due_process
Due_process
Due_Process_Clause
Due_process_clause
Due_Process_Clause_incorporation
Due_Process_Clause_incorporation_of_the_Bill_of_Rights
Due_process_in_the_United_States
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Due_process_of_law
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