Due Process Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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Generally speaking, due process of law constitutes the normal course of legal administration through the courts or some other adjudicatory mechanism with the appropriate safeguards in place to protect individual rights. At the heart of due process is a framework of principles and rules that structure legal proceedings; this framework has been established over time and functions to ensure that private rights are shielded from improper infringement by the state or other private parties. The steady realization over time of the rule of law and the accompanying due process protections in liberal polities constitute two of the most important features distinguishing such polities from author itar ian regimes and otherwise illiberal governmental systems. Due process is a critical constraint and restriction on the ability of governing elites to run roughshod over fundamental liberties of individuals within a free society. It helps to ensure consistent and fair application of the law by minimizing the potential influence of capriciousness or arbitrariness on the part of government officials on such matters.

Procedural Due Process

An essential element of understanding due process is consideration of what procedures, at a minimum, are necessary to guarantee proper protections. A constituent aspect of due process is the presence of a valid tribunal with the jurisdictional authority to hear and resolve the dispute in question, be it a criminal prosecution or a civil litigation. As mandated in two provisions of the U.S. Constitution, any legal proceeding that involves potential deprivation of life, liberty, or property necessitates due process of law protections. The Fifth Amendment lays out this requirement for the federal government, and the Fourteenth Amendment does the same for state governments.

The U.S. Supreme Court has engaged this very question of what level of process is due and sufficient in any given set of circumstances (e.g., a criminal prosecution, a civil litigation, a hearing on the continuation or termination of government benefits for an individual, an adjudication on the legality of a government employee being dismissed). The two major cases in this area are Goldberg v. Kelly (1970) and Mathews v. Eldridge (1976). These two cases emanate from the administrative law context, but they have been drawn upon in subsequent court decisions as guiding precedent in other areas of the law where adjudicative procedures come into play.

In Goldberg, the Court laid out the prominent components of due process, and they are as follows: Persons who will be directly affected by a tribunal’s decision will

Be present at the tribunal’s proceedings
Receive timely and adequate notice of the charges against them
Be able to make an informed decision to contest the legal actions being taken against them or to submit to/ accept the actions
Be able to engage in confrontation and cross-examination of adverse witnesses
Have an opportunity to present their own witnesses
Have an opportunity to address the tribunal’s fact finder or decision maker (judge or jury) orally
Have the right to have legal counsel present and to assist as wished.

In addition, the tribunal’s decision will be on the record, there will be an explanation of the decision, and there must be an impartial decision maker. For due process to be considered operative, there can be no presumption of guilt or liability by the tribunal decision maker—findings of guilt or liability must be proven by legally obtained evidence, and the tribunal’s decision must be sustained by the evidence presented during the proceedings. At the foundation of due process of law is the notion of fundamental fairness, with the result being a resolution of the dispute in question based in true justice.

The subsequent Mathews decision built upon Goldberg, and it established the three-factor modern rule that governs all determinations of whether the due process provided is sufficient. One must consider (1) the importance of the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of that interest under the required procedures and the likely reduction of that risk by requiring more or different procedures, and (3) the government’s interest in using the required procedure, as opposed to more or different procedures and the burdens those varying procedures place upon the government. The Court’s own words at the end of its decision in Mathews are instructive:

The essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it. All that is necessary is that the procedures be tailored, in light of the decision to be made, to the “capacities and circumstances of those who are to be heard,” to insure that they are given a meaningful opportunity to present their case.

In other words, the Court in Mathews makes a point of moving away from the presumption in favor of judicial-type procedures, as Goldberg laid out, and toward a more flexible orientation toward what could constitute a fair procedure, so long as the individual affected had a realistic prospect to attend to the issues at hand.

Considerations of procedural due process have become particularly salient in the wake of the American war on terror after the 9/11 terrorist attacks on New York City and Washington D.C., with subsequent questions arising over the treatment, interrogation, and prosecution of alleged terrorists. What level of due process is “due” to this type of detainee? This necessarily brings into play a variety of accompanying concerns ranging from ensuring national security to not hindering ongoing military operations to respecting basic human rights to providing fair trials to demonstrating fidelity to international agreements on the treatment of foreign hostiles. This is a challenging question indeed, with the need to weigh and balance competing values and compelling opposing arguments in trying to determine what level of due process protections is warranted. The use of military commissions to try suspected terrorists at the American naval base at Guantanamo Bay, Cuba, is at the forefront of this debate.

Substantive Due Process

There is a second type of due process, commonly referred to as substantive due process. Procedural due process, as presented above, is relatively straight-forward—if certain protocols are followed, then due process is considered to have been successfully followed. Substantive due process, in comparison, is less clear-cut conceptually and has a more subjective quality to it than procedural due process, but its implications have had an extraordinarily influential role in the conduct of American law and politics from the late 1800s onward. The creation, decline, and subsequent resurgence of substantive due process speaks to the substantial impact of Supreme Court decisions on the social, economic, and political life of the United States.

At the heart of substantive due process is a focus on the substance of legislation enacted by a state or the federal government. Is that legislative enactment or government action fair, reasonable, and nonarbitrary in its content as well as in its implementation? If not, according to this type of due process, then the courts need to strike it down as unconstitutional, because it violates the due process clause. So this is a much more expansive and broad view of the constitutional guarantees surrounding deprivations of life, liberty, and property. With substantive due process, there are simply some regulations that the government cannot legitimately engage in, because, by their very nature, they are unfair and arbitrary intrusions into persons’ rights to life, liberty, and property. Thus, the Supreme Court has drawn upon the notion of due process to discover or recognize rights that are deemed to be fundamental and that receive very high levels of constitutional protection. The concept of substantive due process was initially launched by the Supreme Court in Lochner v. New York (1905), and from then on for several decades, the Court manifested a strong tendency to strike down a variety of state laws on due process and similar constitutional grounds. In Lochner, the Court rejected as an abridgement of the “liberty of contract” a New York state law that limited the number of hours bakers could work on a weekly basis—this “liberty” abridgment for the Court was a due process violation.

The Lochner era demonstrated the Court’s willingness to strike down any number of state laws that impacted economic relationships. This trend abated when the membership on the Court changed in the 1930s, as President Franklin Roosevelt appointed justices who abandoned this orientation toward economic regulation, and substantive due process ended up submerging for a time. It reappeared in the 1960s as a mechanism for the Supreme Court in legitimizing and validating a wide array of noneconomic interests, most notably the right to privacy, as established in Griswold v. Connecticut (1965), which serves as the foundation for the Court’s decision that abortion rights are constitutionally protected as declared in Roe v.Wade (1973). Prominent examples of the continuing impact of the right to privacy are seen in the subsequent and highly controversial cases of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), in which the Court modified the Roe ruling but still maintained constitutional protection for abortion, and Lawrence v. Texas (2003), where the Court found homosexual conduct to be constitutionally protected. This idea that there are certain fundamental rights that the government cannot intrude upon is constitutionally operationalized through this method of substantive due process. The debate remains highly contentious over the appropriateness of such a mode of constitutional interpretation, with critics arguing that the Court is both fabricating rights that are nowhere mentioned or envisioned in the Constitution and is not showing proper deference to enactments by the elected branches as well.

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