Due Process

Introduction

The Meaning of Due Process

The Constitution contains two due process clauses. The 5th Amendment declares that the Federal Government cannot deprive any person of “life, liberty, or property, without due process of law.” The 14th Amendment places that same restriction on the States, and, very importantly, on their local governments, as well. A thorough grasp of the meaning of these provisions is absolutely essential to an understanding of the American concept of civil rights.

It is impossible to define the two due process guarantees in exact and complete terms. The Supreme Court has consistently and purposely refused to give them an exact definition. Instead, it has relied on finding the meaning of due process on a case-by-case basis. The Court first described that approach in Davidson v. New Orleans, 1878, as the “gradual process of inclusion and exclusion, as the cases presented for decision require.”

Fundamentally, however, the Constitution’s guarantee of due process means this: In whatever it does, government must act fairly and in accord with established rules. It may not act unfairly, arbitrarily, capriciously, or unreasonably.

The concept of due process began and developed in English law and then in American law as a procedural concept. That is, it first developed as a requirement that government act fairly, use fair procedures.

Fair procedures are of little value, however, if they are used to administer unfair laws. The Supreme Court recognized this fact toward the end of the nineteenth century. It began to hold that due process requires that both the ways in which government acts and the laws under which it acts must be fair. Thus, the Court added the idea of substantive due process to the original notion of procedural due process.

In short, procedural due process has to do with the how (the procedures, the methods) of governmental action. Substantive due process involves the what (the substance, the policies) of governmental action.

Case Law

In Rochin v. California (1952), Rochin was a suspected narcotics dealer. Acting on a tip, three Los Angeles County deputy sheriffs went to his rooming house. They forced their way into Rochin’s room. There the deputies found him sitting on a bed, and spotted two capsules on a nightstand. When one of the deputies asked, “Whose stuff is this?” Rochin popped the capsules into his mouth. Although all three officers jumped him, Rochin managed to swallow them.

The deputies took Rochin to a hospital, where his stomach was pumped. The capsules were recovered and found to contain morphine. The State then prosecuted and convicted Rochin for violating the State’s narcotics laws.
The Supreme Court held that the deputies had violated the 14th Amendment’s guarantee of procedural due process.

Said the Court: “This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents– this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw…. “.

The case Pierce v. Society of Sisters (1925) illustrate substantive due process. In 1922, Oregon’s voters had adopted a new compulsory school-attendance law that required all persons between the ages of 8 and 16 to attend public schools. The law was purposely drawn to destroy private, especially parochial, schools in the State.
A Roman Catholic order challenged the law’s constitutionality, and the Supreme Court held that the law violated the 14th Amendment’s Due Process Clause. The Court did not find that the State had enforced the law unfairly. In fact, the State’s courts had found the law unconstitutional, and it had never been put into effect. Rather, the Court held that the law itself, in its contents, “unreasonably interferes with the liberty of parents to direct the upbringing and education of children under their control.”