Due Process Clause

Meaning of the Due Process Clause of the Fourteenth Amendment

The Due Process Clause of the Fourteenth Amendment is the second part of a legal trinity intended to achieve one objective: securing certain fundamental rights for blacks and recently emancipated slaves. The second part of this trinity, the Due Process Clause, prohibited state legislatures from denying blacks access to courts of justice to vindicate their fundamental rights protected by the Privileges or Immunities Clause.

Due Process Clause

Due Process Clause

As described by Raoul Berger, “the three clauses of the [Fourteenth] Amendment were a trinity, three facets of one and the same purpose… the privileges or immunities clause conferred substantive rights which were to be secured through the medium of two adjective rights: the equal protection clause outlawed statutory, the due process clause judicial, discrimination with respect to those substantive rights.”

The Due Process Clause of the Fourteenth Amendment granted federal courts the power to ensure state governments would afford free blacks and recently emancipated slaves the impartial right to judicial process before they could be deprived of their fundamental rights. These fundamental rights were those rights encompassed by the Privileges or Immunities Clause and enumerated in the Civil Rights Act of 1866. The Privileges or Immunities Clause granted specific, fundamental protections to blacks. The Due Process Clause barred judicial discrimination with respect to these fundamental rights – granting blacks a way to protect and vindicate their fundamental rights through the courts.

Though there is no precise definition of Due Process, its meaning was unquestionably tied to judicial proceedings and the procedure required before one could be deprived of life, liberty or property. The Due Process Clause of the Fourteenth Amendment made explicit that judicial protections afforded white persons relative to the federal government under the Fifth Amendment would be extended to afford blacks those same judicial protections relative to the state governments. Both the Fifth and Fourteenth Amendments have the same substantive meaning and require judicial process before one can be deprived of liberties or property. The Fifth Amendment applies against the federal government. The Fourteenth Amendment applies against the state governments.

Despite the fact that “Due Process” does not have a precise, technical definition, it can be definitively said what Due Process does not mean. Due Process does not authorize courts to strike down state legislation based on the substance of the law itself or on public policy grounds.

Context of Due Process and the Fourteenth Amendment

The Fourteenth Amendment was drafted to prevent constitutional challenges to (or the possible repeal of) the Civil Rights Act of 1866. The Civil Rights Act did not specifically mention “Due Process,” but it clearly articulated the meaning of the Due Process rights that were to be extended to blacks and recently emancipated slaves. The Civil Rights Act guaranteed blacks would have the right in every state, “to sue, be parties, and give evidence” and receive the “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” The Due Process Clause of the Fourteenth Amendment created no new rights for blacks and recently emancipated slaves. The Due Process Clause merely extended blacks the same right to receive protection through the courts that had always been afforded the white man.

The Fourteenth Amendment codified and “constitutionalized” the Civil Rights Act of 1866. As it pertains to Due Process, blacks and recently emancipated slaves had been denied impartial access to judicial proceedings and the protections of the courts throughout their history in America. Senator Daniel Clark of New Hampshire said the black man, “was denied access to the courts, because he had no rights which a white man was bound to respect; he was not permitted to testify because he might tell of the enormities practiced upon him.” The Due Process Clause of the Fourteenth Amendment was intended to eliminate this injustice and to provide blacks with the same access to justice through the courts that had always been afforded to white people.

The discussion and debates over the meaning of the Fourteenth Amendment accepted the plain meaning of the Due Process Clause and its connection to legal protections through judicial proceedings. Two months after the Fourteenth Amendment passed Congress, Congressman John Bingham explained the Fourteenth Amendment, “gave ‘any citizen’ the power to correct wrong by judicial process.” This is a clear reference to Due Process.

History and Additional Background on the Due Process Clause of the Fourteenth Amendment

Due Process traces back to the Magna Carta

Due Process traces back to the Magna Carta

Due Process of law has always referred to judicial process and procedure. These principles are approximately eight-hundred years old and trace back to 1215 and clause thirty-nine of the Magna Carta. Clause thirty-nine says, “No freemen shall be taken or imprisoned or disseised 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.” The language, “the law of the land,” was a precursor to “Due Process,” and possessed the same meaning and reference to judicial process and procedure. “The law of the land” language was prevalent in state constitutions prior to 1789 and was generally found in constitutional sections pertaining to safeguards for those charged with crimes. Over time, Due Process became the term to describe judicial procedure synonymous with “the law of the land.”

Explaining both the English common law and American colonial meaning of Due Process in the 1787 New York Assembly, Alexander Hamilton said, “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 the legislature.”

As such, with respect to the Fourteenth Amendment, it should be apparent the Due Process Clause does not empower federal courts to sit in arbitrary judgment upon the wisdom of laws passed by state legislatures. The Due Process Clause of the Fourteenth Amendment merely granted blacks the right to vindicate their fundamental rights through the courts. The Due Process Clause does not empower federal courts to arbitrarily strike down state laws that do not discriminate against blacks with respect to their fundamental rights protected by the Privileges or Immunities Clause.

What is Substantive Due Process?

The judicial doctrine of Substantive Due Process was created out of thin air by federal courts in the early twentieth century. Proponents of this judicial doctrine argue its legitimacy is based on the Due Process Clause of the Fourteenth Amendment. This doctrine enables federal courts to sit in arbitrary judgment on the wisdom and underlying policy of state statutes.

This interpretation of Due Process upends common law and uncontested legal principles dating back to 1215 and the Magna Carta. This interpretation also plainly contradicts Alexander Hamilton’s statement that Due Process has a technical meaning pertaining to judicial process and that Due Process, “can never be referred to an act of the legislature.”

An honest reading of history has never stopped the United States Supreme Court. Who could have known the Due Process Clause of the Fourteenth Amendment, designed to elevate the legal status of blacks and to grant them impartial access to judicial process, actually created “constitutional rights,” including the right to have an abortion? This interpretation would certainly come as a shock to classical due process scholars, as well as to the Radical Republicans who drafted the Civil Rights Act of 1866 and the Fourteenth Amendment.

For more on Substantive Due Process, click here.

For scholarly background on Due Process and the illegitimacy of Substantive Due Process, click here.

United States Constitution – Fourteenth Amendment – Due Process Clause

No state shall… deprive any person of life, liberty, or property, without due process of law;