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Under both the Fifth and Fourteenth Amendments to the U.S. Constitution, neither the federal government nor state governments may deprive any person "of life, liberty, or property without due process of law." A similar due process provision was found in the Magna Charta, as well as early state constitutions. Chief Justice William Howard Taft explained the purpose behind the clauses in Truax v. Corrigan (1921) as follows: "The due process clause requires that every man shall have the protection of his day in court, and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. It, of course, tends to secure equality of law in the sense that it makes a required minimum of protection for every one's right of life, liberty, and property, which the Congress or the Legislature may not withhold."
Courts have interpreted the due process clauses as providing two distinct limitations on government. First, the clauses provide for procedural due process, which requires the government to follow certain procedures before it deprives a person of life, liberty, or property. Cases that address procedural due process usually focus on the type of notice that is required of the government or the type of hearing that must be held when the government takes a particular action. Second, the clauses establish substantive due process, under which courts determine whether the government has sufficient justification for its actions. Because courts use substantive due process to protect certain fundamental rights of U.S. citizens, issues related to substantive due process have been the subject of extensive debate.
Procedural due process focuses primarily on a person's right to be heard, rather than a person's right to prevail in a dispute. Courts usually consider two broad questions in cases involving procedural due process. First, courts consider whether the government's action involves an interest in life, liberty, or property. Second, courts consider whether the
The term "life" in the due process clauses is not often the subject of dispute. Even where the government deprives a person of life (e.g., through enforcement of the death penalty), the government seldom does so without following proper procedures. Where the government has allegedly taken a life in an impermissible manner, challenges to the action are usually based on another constitutional provision. For instance, challenges to the death penalty have typically been based on the Eighth Amendment's proscription against cruel and unusual punishment. Similarly, arguments related to whether life begins at conception or birth, especially in abortion cases, focus on the liberty interests of the mother rather than the definition of "life" in the due process clauses.
The U.S. Supreme Court has sought on a few occasions to clarify the meaning of the term "liberty," though the term has never had a precise definition. In Meyer v. Nebraska (1923), the Court stated that liberty "denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience and generally to enjoy those privileges long recognized as essential to the orderly pursuit of happiness of free men." This statement has been quoted by several subsequent Supreme Court cases.
Liberty interests are most clearly involved when the government's action results in physical restraint, especially in cases involving prisoners. In the examples below, the Supreme Court determined that the government was required to provide due process because of the deprivation of liberty interests:
By comparison, the Court has refused to recognize other forms of liberty interests related to prisoners, including the following examples:
In addition to restrictions on physical freedom, liberty interests include all of the rights that are granted to the people either expressly in the Constitution, such as freedom of speech or freedom from unreasonable searches and seizures. Liberty also includes rights that are implied from the Constitution by the courts, such as the fundamental right for parents to raise their children.
The Constitution clearly requires that the government must provide due process before it deprives a person of real or personal property. The issue that is most often in dispute in this context is whether a person has a property interest in a government benefit. The Supreme Court, in Roth v. Board of Regents (1970), noted that, "[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim or entitlement to it." Hence, the key to whether a person has a property interest in a benefit is whether that person is entitled to the benefit.
In order to determine whether a person is entitled to a benefit, courts generally consider the terms under which the government has offered the benefit. If a government employee has a reasonable expecta-
In some instances, the government may have deprived a person of life, liberty, or property without following any form of procedure. Other instances, where a governmental unit has followed some sort of a procedure, present more difficult questions for courts, which must consider whether the procedures were adequate for the protection of the rights involved. In this context, due process is concerned only that the governmental actor followed a fair decision-making process and not that the government reached a fair result.
Due process basically requires that a person who is deprived of a recognized right must be given some sort of notice and an opportunity for a hearing on the government's action. Where individual rights are affected by legislation, the publication of a statute is sufficient to provide notice to all individuals. On the other hand, an action by an agency or a court requires notice that will ensure that interested parties will, in fact, become aware of a proposed action.
At a minimum, a person who will be deprived of a right is entitled to a fair decision-making process by an impartial decision-maker. However, rather than establish a single rule that all governmental bodies must follow in terms of the specific procedures that are employed during a hearing, courts instead balance various interests when determining what procedures that a governmental entity must use. The Supreme Court in Mathews v. Eldridge (1976) explained these factors as follows: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
The Supreme Court has continued to adhere to the balancing test announced in Mathews, although this test does not require the government to provide a formal adversarial proceeding when it deprives a person of a right. In Wilkinson v. Austin (2005), the U.S. Supreme Court reviewed a case where prisoners were transferred from a state penitentiary to a socalled "supermax" facility, which was reserved for the most dangerous criminals. The state adopted an informal, nonadversarial procedure for determining which inmates would be transferred. Inmates received notice of their transfer as well as the factual basis for their transfer. Moreover, inmates had an opportunity to rebut accusations, and multiple levels of review were available for an appeal. After stating that the Mathews test still constituted good law, the Court determined that these procedures were adequate to provide due process.
The Fourteenth Amendment, ratified by the states in 1866, included among is provisions the Privileges and Immunities Clause. This clause provides that no state "shall abridge the privileges and immunities of the citizens of the United States." Many commentators have long argued that this provision, rather than the Due Process Clause of the Fourteenth Amend-
Although some cases during the nineteenth century suggested that the due process should protect substantive rights, the Supreme Court generally avoided this question. In Lochner v. New York (1905), however, the Court reversed its position, ruling that a state statute limiting the number of hours that employees could work violated due process because it interfered with the workers' right to contract. After this decision, the Court engaged in a practice where it effectively substituted its own judgment for the judgment of a legislative body.
Several pieces of legislation enacted under President Franklin Roosevelt's New Deal program were challenged on due process grounds. The Court at that time continued to strike down legislation based on the due process clause under Lochner, and the economic beliefs of the justices conflicted with the goals of Roosevelt's legislation. In a direct clash between two of the branches of government, Roosevelt threatened to add Supreme Court justices who were more likely to uphold the statutes. Although Congress later rejected the court-packing plan, the Court nevertheless reversed its position. By 1937, the Court no longer subjected legislation to the same type of scrutiny that it did under Lochner.
Beginning with United States v. Carolene Products Co. (1938), the Court significantly revised its approach to the review of legislation. The Court presumes that legislation is constitutional and places the burden on the person challenging the law to prove that the law is not rationally related to a permissible government interest. Under this rational basis test, the Court strikes down very few pieces of legislation.
The Court's review of legislation changes when the law affects a fundamental constitutional right. A fundamental right may arise explicitly from the Constitution or may be implied from the Constitution by the courts. The application of the due process clauses in the context of the protection of fundamental rights overlaps with the application of the Equal Protection Clause. If a law classifies certain people based on their exercise of a fundamental right, then the Court applies the Equal Protection Clause to the analysis. However, if the law restricts the fundamental rights of all persons, the Court engages in a due process analysis.
Under either the Equal Protection Clause or the due process clauses, where a law infringes upon a fundamental right, the Court subjects the law to close scrutiny. Unlike laws that are reviewed under the rational basis test, the Court presumes that a law that restricts a fundamental right is unconstitutional, and the state may only prove that the law is constitutional by showing that the law is "narrowly tailored" to further a compelling governmental interest. This standard is very difficult for the government to overcome.
One of the more controversial aspects of both due process and equal protection jurisprudence is the recognition of the fundamental rights that the Court has determined are implied in the Constitution. Few tend to question that citizens of the United States have a fundamental right to freedom of religion, since the Constitution explicitly provides this right. However, it is less clear that citizens have a general right to privacy since the Constitution says nothing about these types of rights. Nevertheless, the Court has recognized a number of these implied rights, which are often identified more generally as privacy rights.
The Court has long recognized that the right to procreate is a fundamental right protected by the Constitution. In Skinner v. Oklahoma (1942), the Court invalidated a state statute that provided for the mandatory sterilization of certain habitual criminals. Noting that the right to procreate was a "basic right of man," the Court strictly limited the power of a state to impose involuntary sterilization.
Much of the modern focus on the protection of privacy rights began with the case of Griswold v. Connecticut (1965), which involved a challenge of a criminal law that proscribed the use of contraceptives, even in private. According to the lead opinion written by Justice William Douglas, even though the Constitution was silent about the right to privacy, the Constitution nevertheless contained a "penumbra" of rights within the Bill of Rights that included the right to privacy. Since the criminal law in this case infringed upon the privacy rights of those who wished to use contraceptives, the Court ruled that it violated the Due Process Clause of the Fourteenth Amendment. Although other justices disagreed with the un-
Probably the most debated right that the Court has recognized relates to whether a woman has a right to terminate her pregnancy. In Roe v. Wade (1973), the Court found that a woman's right to make this decision was indeed a fundamental right protected by the Constitution. Competing with this right of the woman is the state's interest in maternal health. The Court in Roe established the time during which the state could not prevent a woman from having an abortion (i.e., during the first trimester of the pregnancy) and the time during which the state could place restrictions on abortions (i.e., after the first trimester).
Critics have attacked Roe since the decision was handed down, often on the grounds that it represents judicial activism at its worst. On the other hand, supporters have defended the decision with equal vigor on the basis that it represents one of the more important rights of women. Subsequent cases, especially Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), have diluted Roe to a large extent, even though the basic holding of Roe has remained intact.
Most states outlawed homosexual acts for many years through the application of sodomy laws. The repeal of these sodomy laws as they applied to homosexual acts became a focal point for gay and lesbian rights groups, much like the right to an abortion has been a focal point for women's rights groups. In the case of Bowers v. Hardwick (1986), however, the Court explicitly refused to recognize that the Constitution "would extend a fundamental right to homosexuals to engage in acts of consensual sodomy."
Critics argued that the Court misconstrued the basic rights at issue in Bowers, saying that the case was really about the right to be left alone rather than the right to engage in homosexual conduct (the case arose after police arrested a man engaged in a sex act in his own house). Seventeen years after the decision in Bowers, the Court reconsidered its position, and in Lawrence v. Texas (2003), it declared that sodomy laws were indeed unconstitutional. According to Justice Anthony Kennedy, "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."
The Court in Loving v. Virginia (1967), recognizing a fundamental right to marriage, invalidated a state statute that forbid interracial marriage. Chief Justice Earl Warren wrote that "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."
In addition to marital rights, the Court has recognized several other family-related rights, including the rights of parents to raise their children as they see fit. In Santosky v. Kramer (1982), the Court noted that "freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment." Further, the Court recognized a "fundamental liberty interest of natural parents in the care, custody, and management of their child."
Custody of one's children is considered to be a fundamental right, though the Court in several cases has refused to protect the rights of unmarried fathers. Parents also have a fundamental right to keep their family together, as well as to control the upbringing of their children. This includes the rights of parents to raise their children without interference from others, including grandparents. In Troxel v. Granville (2000), the Court in a plurality opinion struck down a Washington statute that allowed any person to petition a court for visitation rights if visitation was in the best interests of the child. Under this case, even though a state statute may still allow courts to grant visitation right to grandparents (and perhaps others), such a law may not do so in a manner than infringes upon a parent's right to make decisions regarding the "care, custody, and control" of his or her children.
In addition to privacy rights, the Supreme Court has recognized several other fundamental rights. Among these rights are the following:
Constitutional Law in a Nutshell, 5th Edition. Barron, Jerome A. and C. Thomas Dienes, Thomson/West, 2003.
Constitutional Law: Principles and Policies, 2d Edition. Chemerinsky, Erwin, Aspen Publishers, 2002.
Constitutional Law, 7th Edition. Nowak, John E. and Ronald D. Rotunda, Thomson/West, 2004.
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