Due Process in America: Fifth and Fourteenth Amendments

Introduction

The concept of "Due Process" is a uniquely American one, the significance of which has changed as much as the societal and political times of the nation itself. Today, some critics argue that Due Process is a thing of the past — particularly in light of the National Defense Authorization Act, which authorizes the military to arrest and indefinitely detain civilians suspected of being terrorists. Nonetheless, it has not been lawmakers but the courts that have traditionally defined Due Process.

This paper discusses the meaning, history, and importance of the constitutional concept of "Due Process" as contained in the Fifth and Fourteenth Amendments to the United States Constitution. It also includes a brief discussion of the conflicting positions of Justice Hugo Black and Justice Felix Frankfurter with respect to the incorporation of rights under the Due Process Clause of the Fourteenth Amendment, and how those positions helped develop the concept of Due Process.

Background: The Fifth and Fourteenth Amendments

The Fifth Amendment as stated in the United States Constitution essentially guaranteed due process of the law in all federal courts: "No person shall be held…nor be deprived of life, liberty, or property, without due process of law" (U.S. Const. Amend. V). The Fourteenth Amendment, as interpreted by Chief Justice Earl Warren of the Supreme Court nearly a century after the Amendment's ratification, asserted that due process applied to state courts as well as to federal courts — an application that revolutionized the way the criminal justice system operated at state and local levels.

If the original Bill of Rights was meant to protect citizens from the tyranny of a central government, the Fourteenth Amendment addressed the citizen's relationship to state power as well: "No State shall…deprive any person of life, liberty, or property, without due process" (U.S. Const. Amend. XIV). Originally intended to address the question of citizenship in the South in the wake of the Civil War, the Fourteenth Amendment became laden with broader implications for the American judicial system — at least in the eyes of successive courts.

Black and Frankfurter: Two Opposing Interpretations

As social systems have changed, so too have the ways in which the law of the United States can be interpreted. The tension between objectivity and subjectivity in philosophy — a tension comparable to the gulf between the medieval world of scholastic thought and the modern world of skepticism, doubt, and Hegelian dialectic — altered not only society's perception of universals and transcendentals but also judges' perception of the law. The letter of the law and the spirit of the law could be called into question as easily as one could construct "reasonable" doubt about their intent and meaning.

For judges like Justice Hugo Black, the Due Process Clause had a precise and objective meaning. As he wrote in the Supreme Court decision In re Winship, 397 U.S. 358 (1970), that "precise" and "objective" meaning depended, of course, on the perspective of the Justice doing the defining. For Black it was clear: "[T]he only correct meaning of that phrase 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" (Ely, 1980, p. 190). Due Process at the state level was non-negotiable: the "law of the land" as interpreted by the courts said so.

Yet, as John Hart Ely observes, for all of Justice Black's emphasis on the Constitution, "the propriety of equating this 'law of the land' concept with due process is far from clear" (p. 190). Perhaps for this reason, Justice Felix Frankfurter refused to apply the Fourteenth Amendment to state powers. An advocate of judicial restraint, Justice Frankfurter noted in Irvin v. Dowd that "the federal judiciary has no power to sit in judgment upon a determination of a state court" (Eisler, 1993, p. 161). This view contradicted that of Justice Black and of one of Black's supporters, Justice William J. Brennan. While it had been clear to Brennan that the Fifth Amendment had no relation to states' rights, Brennan followed Black in asserting that the Fourteenth Amendment dealt specifically with states by affirming the authority of federal law over them. Brennan believed that the Fourteenth Amendment "provided the mechanism" through which the Bill of Rights could be applied to the states, including the concept of Due Process (Eisler, 1993, p. 167).

The Warren Court and Federal Authority

Baker v. Carr was an important case that gave the Justices of the Supreme Court an opportunity to define the Fourteenth Amendment's relation to the states. Earl Warren himself would often call it the most interesting and significant case of his tenure (Eisler, 1993, p. 168). In Colegrove v. Green, Justice Frankfurter had asserted that the Supreme Court should not interfere in the judgments and processes of state courts. In other words, Frankfurter did not view the Fourteenth Amendment as an amendment that could allow federal courts to dictate how due process should be effected at the state level. Frankfurter called it a "political thicket" best avoided (Eisler, 1993, p. 169).

But Baker v. Carr opened the door to that "political thicket" and in fact changed the relationship between state and federal courts. Justice Brennan was instrumental in effecting this change: "Within three years of the Baker v. Carr decision…the federal courts would soon order exactly what parameters states had to follow" (Eisler, 1993, p. 177). Through the application of the Due Process Clause to the states by way of the Fourteenth Amendment, the Warren Court — with Justice Brennan advocating the position of Justice Black — delivered a decisive blow to state power. It was not simply a question of citizens' rights; it was a question of federal authority over states' rights. The spirit of the Civil War–era amendment was alive and well in the Warren Court: states were to submit to central power.

Conclusion

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