The Home of American Intellectual Conservatism — First Principles

February 17, 2019

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Due Process
George W. Carey - 05/10/11

“Due process” is cherished by conservatives as one of the most significant legal principles to emerge from the English common law tradition. The origins of due process are generally understood to be contained in chapter 39 of the Magna Carta, which declares that “No freeman shall be arrested, or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested; and we will not set forth against him, nor send against him, unless by the lawful judgment of his peers and [or] by the law of this land.” Largely through the efforts of the famous English jurist Edward Coke, the phrase “law of the land” was replaced in legal parlance over time with the expression “due process of law.” At his urging, the fourth article of the Petition of Right (1628) reads “That no man of what estate or condition that he be, should be put out of his land or tenements, nor taken nor imprisoned, nor disinherited, nor put to death without being brought to answer by due process of law.” The modern counterparts of this article, found in the Fifth and Fourteenth Amendments of the U.S. Constitution as well as in various state constitutions, read that no person shall be “deprived of life, liberty, or property without due process of law.”

As it emerged from the English tradition, the essence of “due process of law” lay in the right of individuals to be notified of the charges against them, as well as their right to a fair hearing. For the most part, during both the colonial years and the period leading up to the adoption of the Constitution, the meaning of due process was cast in terms of notification and fair hearing, and the due process clauses (actually “law of the land” clauses) in the state organic laws were understood to relate to process, not to matters of substance. Save for the infamous Dred Scott decision in 1857, the Supreme Court maintained the same view with regard to the Fifth Amendment’s due process clause. Even after the passage of the Fourteenth Amendment, the Court was reluctant to look at due process in any other way.

Since the latter part of the nineteenth century, however, the original understanding of the due process clause, including the meaning of “liberty,” has changed enormously, so that today even conservatives are divided on its proper use. Towards the end of the nineteenth and into the twentieth century, the courts used the due process clause to review state regulation of businesses, industries, and utilities in the area of economics to see if such regulations were “fair” and “reasonable” or whether they violated the “property” rights or “liberty” of the proprietors. While the Supreme Court no longer practices “substantive” due process in the economic area, there are some libertarians of a conservative bent who argue that property rights deserve priority and that the courts should again turn their attention to the fairness and reasonability of economic regulations promulgated by both the state and national governments. They contend, for instance, that the “rent control” practiced by some municipalities violates the due process clause because it unreasonably deprives individuals of their “property.”

The major controversy concerning “due process of law” centers around the Supreme Court’s use of the clause in the Fourteenth Amendment to apply most of the provisions of the Bill of Rights to states through the process of “incorporation.” This process—started in 1925 and proceeding at a greatly accelerated pace during the period of the Warren Court (1953–68)—in effect defines the word “liberty” as it relates to the due process clause in terms of the liberties and procedures embodied in the Bill of Rights. In fact—and what upsets many conservatives—the Supreme Court has even found rights, liberties, and conditions that are not actually spelled out in the Bill of Rights. Into this category fall the “right of privacy,” “freedom of expression,” and “wall of separation between church and state.” What is more, many, if not most, conservative legal scholars view the entire process of incorporation as illegitimate and contrary to the intention of those who drafted the Fourteenth Amendment. In addition, they point out that if “liberty” was originally thought to include the basic rights in the Bill of Rights, then the founding fathers were guilty of gross redundancy by spelling these rights out in separate amendments.

Most conservatives are critical of the Supreme Court’s use of the due process clause for still other reasons. First, the Court has expanded its powers enormously, even to the point of legislating. Some conservative scholars even contend that the expansion of judicial powers, via the Fourteenth Amendment, has created a condition of judicial tyranny. Moreover, conservatives find decisions of the Supreme Court in most significant areas to be repugnant to the intentions of the founders. Such is the case, for instance, with respect to the Court’s interpretation of the establishment clause of the First Amendment, which the Court has used to strike down voluntary prayer in the public schools and most state aid programs for religious schools. Conservatives also believe that the Court has severely damaged the system of criminal justice by concocting an elaborate code of defendants’ rights that makes it unduly burdensome to convict the guilty.

Second, conservatives view the Court’s use of the Fourteenth Amendment as further eroding the power of the states and localities to handle their own affairs. The Court has set down standards with regard to matters such as speech and expression, including pornography, that many communities find far too permissive. Thus, conservatives argue that the Court’s use of the due process clause not only contributes to greater centralization and the establishment of a unitary state, but also deprives states and communities of the basic freedom of self-government.

Finally, through the due process clause, conservatives charge that the Court has advanced a liberal agenda by reading into the Constitution rights that simply are not there. For instance, through the “liberty” purportedly protected in the due process clause, the Court in Roe v. Wade (1973) declared a “right” of privacy that, in effect, allows for abortion on demand.

Further Reading
  • Carey, George W. In Defense of the Constitution. Indianapolis, Ind.: Liberty Fund, 1995.
  • Holt, J. C. Magna Carta. Cambridge: Cambridge University Press, 1976.
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