The Fifth Amendment to the United States Constitution includes a clause called Due Process Clause and it is stated in the passage “no person… shall be deprived of life, liberty, or property, without due process of law.” The historical background has its origins in the Article 39 of the Magna Carta, which states that “no free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.” This British clause from 1215 was designed to protect the private interests of the noble class against arbitrary actions of the king, submitting this last one to the principle of legality. In a first moment, these rights applied only for landowners and not for common citizens.
After many changes in Magna Carta, the expression “Due Process of Law” appears for the first time in 1354 statute, that says “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.” The legal meaning of “Due Process of Law” in this document is that the accused person has the right to a process based in an appropriate writ. This bureaucratic significance lasted until the XVIII Century.
In the United States, by the time the Fifth Amendment was incorporated in the Bill of Rights, eight states constitutions already had clauses regarding due process. In the amendment, the world “due process” replaced the term “law of land”. This fact shows that the founding generation was heavily influenced by the commentaries of Sir Edward Coke about the Magna Carta, in 1608. Coke considered that law of land and due process were equivalent words. Alexander Hamilton however, tried to give a strict definition to the term “due process”: “The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.”
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Salus populi suprema lex (The welfare of the people is the supreme law). Although the intention behind this term is the good of the people, it has been time and again used by the perpetrators of power for justifying their unconstitutional and illegitimate actions and laws. The concept of constitutionalism is the doctrine which governs the legitimacy of government action. A power may be exercised ...
The Bill of Rights was added to the constitution after an agreement with the Anti-Federalist Party, whose members, as well as many other people, were concerned about the fact that the Constitution could not be enough to guarantee individuals rights. James Madison analyzed the proposals for amendments sent by several states, but one proposal from New York was accepted practically unchanged: “No Person ought to be taken imprisoned or disseized of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law.” This proposal gave origin to the Due Process Clause of the Fifth Amendment, and became law in December 15, 1791.
In the XVIII Century, the judiciary power was regarded as an extension of the executive power. Because of that, the expression “without due process of law” was understood as executive actions conducted without the proper legal authorization. By that time, the clause referred to traditional forms of justice, regarding pre-existing laws, instead of regard the due process itself. However, American legal system was submitted by intense revision during late XVIII Century and became much different from the conservative British interpretation of due process.
In 1856, Supreme Court extended the due process principle to the Congress, in the case Murray Lessee x Hoboken Land and Improvement Co. In this Case the Supreme Court used Due Process clause to limit the adjudication power of the Congress. From that time, Congress became submitted to the Due Process Clause.
Despite these legal advances leading to a more broad interpretation of the clause, not all of the three individual rights guaranteed by it were sufficiently clear. Sir William Blackstone tried to fix this problem by defining the three primary personal rights. Personal Security, that corresponds to the Fifth Amendment guarantee of life, was defined by Sir Blackstone as “a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation”. Personal Liberty was defined as “the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law” and the Right to Private Property was defined as “the free use, enjoyment, and disposal (by man) of all his acquisitions, without any control or diminution, save only by the laws of the land”. These definitions encompass concepts such as body integrity and individual freedom of choice, but the right to property, here, continues to be an ambiguous idea. It includes exchangeable values but not government benefits, jobs and licenses. Furthermore, another question remained. The definitions of the terms Life, Liberty and Property were in accordance to federal or to state laws? In 18th Century America it is acceptable to say that the Constitution defined the outer margins of these definitions, while state laws specified minor details.
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Chapter 1 Statue- written law enacted by the legislative branch establishing certain courses of conduct to follow. Ordinances- laws enacted by local government bodies. Judicial decision- a decision about an individual lawsuit issued by fed. or state courts. Chapter 2 Limited-jurisdiction trial court- a court that hears matters of specialized or limited nature. General-jurisdiction trial court- a ...
The doctrine of the legal interpretation of the Due Process Clause significantly evolved in the 20th Century. In 1951, during the case Joint Anti-Fascist Committee x McGrath, Associate Justice Felix Frankfurter wrote some words about due process that would become the basis for the modern doctrine of this clause: (due process) “unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances (…) representing a profound attitude of fairness between man and man, and more particularly between the individual and government, due process is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith we profess.” It is about a complex process, composed by many different factors and difficult to balance. Until today there are much discussion about what factors should be considered and about the timing of the process. The broad Blackstone´s definition of the terms Life, Liberty and Property suffered a narrowing process during the 50´s, but in the early 60´s they were expanded again. The three rights were redefined as “any interest whose loss would be grievous” and that included government benefits such as jobs and licenses. In the case Planned Parenthood x Casey, 1992, Justice Anthony Kennedy gave the concept of liberty its most comprehensive definition: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”.
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The concept of liberty seems to have been consistently analysed and re-structured throughout history by ambitious philosophers keen on creating a ‘better world’. John Stuart Mill, a British philosopher of the XIX century, is not an exception from this trend. With his thought-provoking work “On Liberty”, he sets a basis for what he believes will lead to the development of the human being and ...
Today there are still controversies regarding the applicability of the Due Process Clause. Among its restrictions is the fact that it can only be applied in government actions. The 13rd Amendment is the only part of the constitution to which private entities are submitted. Moreover, the Due Process Clause does not include government unintentional misguided actions, errors and negligence. And finally, administrative agencies, which perform the majority of governmental actions, concentrate both rule-making and adjudication powers, that resembles legislative and judiciary powers, in the same institution. Very often, private parties feel unprotected by the due process against some actions of these agencies. Despite the problems that are still appointed in the applicability doctrine of the Due Process, in the last decades the clause had being suffering its larger definition expansion, as can be exemplified by Justice Anthony Kennedy´s definition of liberty, during the case Planned Parenthood x Casey in 1992: “Justice Anthony Kennedy “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”.
Bibliography
Books:
The Heritage Guide for American Constitution, Edward Meese
The Defendants Rights Today, David Fellman
Websites:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html
http://www.revolutionary-war-and-beyond.com/due-process-clause-5th.html
http://www.slate.com/id/2165133
http://www.fordham.edu/halsall/source/magnacarta.html
http://press-pubs.uchicago.edu/founders/documents/amendV_due_processs13.html
The Term Paper on Article 21 of the Constitution of India After Maneka Gandhi’s Case
INTRODUCTION To a great extent, the Supreme Court of India finds its strength in Article 21 of the Constitution, for the reason that much of its judicial activism has been based on interpreting the scope of this Article. Majority of the PIL cases have been filed under this Article only. The Supreme Court is now known as an activist court. There has been no change in the words used in Article 21, ...
http://conlaw.usatoday.findlaw.com/constitution/amendment05/11.html#1
