This paper examines the constitutional concept of due process as codified in the Fifth and Fourteenth Amendments to the U.S. Constitution. It traces the historical development of due process protections, distinguishing between procedural due process (fair legal procedures) and substantive due process (protection from unfair government interference with property and rights). The paper analyzes the contrasting judicial philosophies of Justices Hugo Black and Felix Frankfurter regarding the incorporation of due process protections to the states, demonstrating how their competing interpretations shaped modern American jurisprudence and contemporary constitutional law.
Many Americans are aware that they are entitled to "their day in court" but may not fully understand the full range of due process protections contained in the Fifth and Fourteenth Amendments to the U.S. Constitution. According to Black's Law Dictionary, "due process of law" means "an exercise of the powers of the government as a settled maxim of law permit and sanction, and under such safeguards, for the protection of individual rights as those maxims prescribed for the class of causes to which the one in question belongs" (Black's Law Dictionary, 1991, p. 500).
The due process clauses found in the U.S. Constitution's Fifth Amendment (1791) and Fourteenth Amendment (1868) protect individuals from government actions of different sorts. These clauses contain two distinct aspects:
Procedural due process guarantees individuals fair procedures in legal proceedings. Substantive due process protects an individual's property and liberty from unfair governmental interference or taking (Black's Law Dictionary, 1991).
While these protections appear straightforward and appropriate for safeguarding basic civil liberties, numerous interpretations of the constitutional procedural and substantive due process clauses have emerged over the years. Perry (1999) notes that because disagreement often arises about whether the procedural protection provided by government in depriving a person of life, liberty, or property constitutes the process that is "due," courts—and ultimately the Supreme Court—must decide whether the kind or amount of process government has provided qualifies as "due process of law" (p. 53).
Many constitutional scholars maintain that the substantive due process doctrine is incongruent with the original meaning of the due process clauses set forth in the Fifth and Fourteenth Amendments (Williams, 2010). In Regents of the University of Michigan v. Ewing, 474 U.S. 214, 225–226 (1985), the Supreme Court, in a divided opinion, conceded that substantive due process decisions were "suggested neither by [the] language nor by [the] preconstitutional history" of the due process clauses and were "nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments" (cited in Williams, 2010, p. 410).
The Fifth Amendment to the U.S. Constitution contains protections against being held accountable for a crime unless a grand jury finds probable cause, protections against double jeopardy, and protections against self-incrimination. Most significantly, it stipulates that no person in the United States shall "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
According to the Legal Information Institute at Cornell Law School, while the Fifth Amendment originally applied only to federal courts, the U.S. Supreme Court has interpreted its provisions as now applying to the states through the Due Process Clause of the Fourteenth Amendment. The Fifth Amendment applies to the federal government only; these protections were extended to the states by virtue of the Fourteenth Amendment.
During the 75-year period that elapsed between the ratification of the Fifth Amendment and the Fourteenth Amendment, courts developed a conceptualization of substantive due process. Chapman and McConnell (2012) explain that "the original understanding of the Fifth Amendment did not have a 'substantive due process' component, but the original understanding of the Fourteenth Amendment did" (p. 1673). There was also a general consensus that when the Fifth Amendment was ratified, "due process meant that the executive could not deprive anyone of a right except as authorized by law, and that to be legitimate, a deprivation of rights had to be preceded by certain procedural protections characteristic of judicial process: generally, presentment, indictment, and trial by jury" (Chapman & McConnell, 2012, p. 1673).
In the seminal case Hurtado v. California, 110 U.S. 516, 534 (1884), the Supreme Court held that the Fourteenth Amendment's due process clause imposes the same procedural requirements on state governments that the Fifth Amendment's due process clause imposes on the federal government (Perry, 1999).
The Fourteenth Amendment to the U.S. Constitution extended the due process protections in the Fifth Amendment to the several states. The Fourteenth Amendment specifically stipulates that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law." Additionally, the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws" (Fourteenth Amendment, 2014).
The manner in which due process clauses have been applied over the years has shaped modern American jurisprudence. In the well-known case Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court expanded Fifth Amendment protections to include non-courtroom settings involving threats to personal freedoms. According to Zelman (2008), Miranda v. Arizona extended due process protections to individuals during interrogations while under custodial control, significantly broadening the scope of due process in law enforcement contexts.
In Lochner v. People of the State of New York, 198 U.S. 45 (1905), many constitutional scholars maintain that the Court erred in a way that left a lasting legacy on the interpretation of substantive due process in the United States. Bernstein (2003) argues that "the U.S. Supreme Court exceeded its legitimate judicial role by reading the right of 'liberty of contract' into the Fourteenth Amendment's Due Process Clause, despite the absence of textual support for this right" (p. 1). This controversial decision has become a touchstone for debate about the proper scope of substantive due process.
In the case Kelo v. City of New London, 545 U.S. 469 (2005), the Supreme Court's 5–4 majority decision held that "the city's taking of private property to sell for private development qualified as a 'public use' within the meaning of the takings clause. The Fifth Amendment did not require 'literal' public use, but the 'broader and more natural interpretation of public use as public purpose'" (cited in Kelo v. City of New London, 2014, para. 2). This decision sparked significant controversy regarding the limits of government power to take private property.
Since the Lochner case, the Fourteenth Amendment has been used in numerous cases to delineate the specific rights of American citizens. The Fourteenth Amendment's equal protection clause has been the focal point of precedential cases including Brown v. Board of Education (1952, 1954), involving racial discrimination; Roe v. Wade (1971, 1973), concerning reproductive rights; Bush v. Gore (2000), concerning election recounts; Reed v. Reed (1971), concerning gender discrimination; and University of California v. Bakke (1978), concerning racial quotas in education.
Supreme Court Justice Hugo Black opposed the notion of substantive due process. His "jot for jot" account of substantive due process in Graham v. Connor, 490 U.S. 386, 395 (1989), makes this position clear: "Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims" (cited in Massaro, 1998, p. 1087).
Justice Black concurred, however, that the Fourteenth Amendment extended due process protections to the state level. Dissenting in Adamson v. California, 332 U.S. 46, 74–75 (1947), Justice Black wrote: "[H]istory conclusively demonstrates that the language of the first section of the Fourteenth Amendment... guarantee[s] that no state [can] deprive its citizens of the privileges and protections of the Bill of Rights" (cited in Massaro, 1998, p. 1087).
By contrast, Associate Justice Felix Frankfurter firmly believed in substantive due process as both a matter of law and as being necessary for the proper functioning of the American judicial system in protecting individual rights. Justice Frankfurter's observation that "the history of American freedom is, in no small measure, the history of procedure" provides significant insight into his views concerning the fundamentality of due process to American jurisprudence (cited in Hames & Ekern, 2010, p. 112). Bodenhamer (2007) reports that "Justice Felix Frankfurter's telling comment expresses a fundamental article of faith about our constitutional heritage: liberty and rights cannot exist without due process of law" (p. 128).
In Malinski v. New York, 324 U.S. 401 (1945), Justice Frankfurter emphasized that, like the Constitution itself, the concept of due process is not a static notion but rather a dynamic concept that must change with the times. Justice Frankfurter observed that:
Experience has confirmed the wisdom of our predecessors in refusing to give a rigid scope to this phrase [due process of law]. It expresses a demand for civilized standards of law. It is thus not a stagnant formulation of what has been achieved in the past but a standard for judgment in the progressive evolution of the institutions of a free society. (Malinski v. New York, 324 U.S. 401 [1945], cited in Hames & Ekern, 2010, p. 113)
Justice Frankfurter was an advocate of extending the full due process protections of the Fifth Amendment to the states before this position was widely accepted. In Adamson v. California (1947), described by Hirsch (1981) as "one of the most significant cases of the decade," the Supreme Court held that the due process clause of the Fourteenth Amendment did not "incorporate" the Constitution's first eight amendments and make them fully applicable to state action (p. 243). However, Justice Black dissented, joined by Justices Douglas, Murphy, and Rutledge, arguing that his study of the Fourteenth Amendment's history led him to the opposite conclusion (Hirsch, 1981, p. 243).
"Modern due process protections and ongoing constitutional debates"
You’re 83% through this paper. Sign up to read the remaining 1 section.
Sign Up Now — Instant Access Already a member? Log inAlways verify citation format against your institution’s current style guide requirements.