DUE PROCESS MODEL

Specialty Definition: Due process

(From Wikipedia, the free Encyclopedia)

Due process in the United States refers to limitations on laws and legal proceedings that are considered necessary for fundamental fairness, justice, and liberty. Due process is considered to have both procedural and substantive components.

Procedural Due Process
Procedural due process as a bare minimum includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings. The Fifth Amendment contains a guarantee of basic due process applicable only to actions of the federal government. The 14th Amendment applies due process guarantees to the States. State constitutions also have their own guarantees of due process that may extend even more protection to individuals than under federal law.
Specific Procedural Guarantees in the Constitution and Incorporation'
In addition, the main articles of the Constitution as well as the other amendments in the Bill of Rights contain many specific procedural guarantees, particularly in the context of criminal prosecution. The Bill of Rights was originally written to limit only the federal government. However, most of its guarantees are considered either part of the "privileges and immunities" of federal citizenship or a necessary part of liberty and due process, and so have been incorporated by the 14th Amendment's due process clause so as to also apply equally to the States. The exceptions are the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil cases. These rights apply only in federal courts.
Below is a list of explicit procedural guarantees in the Constitution.

Article One, Section 9:
the right to writs of habeas corpus, except during rebellion or invasion
the prohibition of bills of attainder (conviction and sentencing for a crime, typically treason, by a legislative act)
the prohibition of ex post facto laws (punishing acts not crimes at the time they were committed)
The 5th Amendment:
the right to a grand jury indictment in federal court, in capital and other "infamous" cases, except for members of the armed forces
the prohibition of double jeopardy (prosecuting someone again for a crime of which they have already been acquitted)
the right to not commit self-incrimination
the right to due process of law for life, liberty, and property (as enforced against the federal government)
the prohibition of taking private property for public use without just compensation (eminent domain is taking with compensation)
The 6th Amendment:
in all criminal prosecutions:
the right to a speedy and public trial
the right to an impartial jury of one's peers
the right to know the charges and evidence
the right to confront and cross-examine opposing witnesses
the right to compel witnesses to appear
the right to counsel
The 7th Amendment:
in civil trials in federal courts:
the right to a jury in civil trials
the guarantee that issues determined by a jury will not be redetermined by other courts in a manner contrary to the common law
The 14th Amendment, Section 1:
the right to due process of law regarding life, liberty, and property (as enforced against State governments)

Substantive Due Process
Though on its face, the idea that due process is not only procedural but substantive seems paradoxical, the boundary between substance and procedure is in fact far from exact. The Supreme Court has held for most of its history that due process must include limits not only on how laws are passed or enforced, but on what kind of laws may be imposed by majorities upon minorities and individuals. The court has consistently viewed the due process clause as embracing those rights that are "implicit in ordered liberty." Just what these rights are is not always clear. Throughout the court's history, substantive due process has protected such uncontroversial rights as marriage and raising children. However, what are seen as past abuses and present excesses of this doctrine continue to spur debate over its use.
The idea of substantive due process is loosely descended from the Magna Carta. Following the Magna Carta's promulgation, judges found they had the power to overrule laws and judgments at odds with the law of the land. This was to some extent an outgrowth of the common law's philosophical reliance on natural law and the western idea that some laws could be "unlawful."
Substantive due process has a checkered past in the U.S., as it was first applied by the Supreme Court in the infamous Dred Scott v. Sandford. Dred Scott was a slave who claimed that passing through territory in which slavery was prohibited destroyed his owner's property rights over him. However, the Supreme Court held that due process protections of property restricted certain types of laws that would take away property, not merely the procedure by which it was taken. After the Fourteenth Amendment applied due process restrictions to states, the Supreme Court used it to find a freedom of contract to routinely strike down economic and labor regulations, as in Lochner v. New York.
As judges became more deferential to legislative judgment in the area of commerce, substantive due process shifted away from upholding laissez faire economics to recognizing individual rights concerning family and privacy. It has notably been invoked to invalidate restrictive laws in such areas as contraceptives in Griswold v. Connecticut and abortion in Roe v. Wade, and most recently in Lawrence v. Texas regarding the rights of homosexuals to sexual intimacy.
The same criticisms of the doctrine continue as in the past--that justices are reading their personal views into the Constitution instead of interpreting it. However, the disagreements are much more concerned with what, based on tradition and history, should be embraced under such protections of liberty rather than whether there are such unspoken guarantees in the Constitution. In other words, the main debate over substantive due process is simply where to apply it, not whether it should be applied at all.
Due process is considered similar to the concept of fundamental justice in Canada.
Source: adapted by the editor from Wikipedia, the free encyclopedia under a copyleft GNU Free Documentation License (GFDL) from the article "Due process."

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INDEX

1. Bibliography