The Bowen Daily ... Clark County Superior Court Edition.... Due Process and the Constitution..... THE PROMISE OF LEGALITY AND FAIR PROCEDURE While the text of the due process clause is extremely general, the fact that it appears twice makes clear that it states a central proposition. Historically, the clause reflects the Magna Carta of Great Britain, King Johns thirteenth century promise to his noblemen that he would act only in accordance with law (“legality”) and that all would receive the ordinary processes (procedures) of law. It also echoes that countrys Seventeenth Century struggles for political and legal regularity, and the American colonies strong insistence during the pre-Revolutionary period on observance of regular legal order. The requirement that government function in accordance with law is, in itself, ample basis for understanding the stress given these words. A commitment to legality is at the heart of all advanced legal systems, and the Due Process Clause often thought to embody that commitment. The clause also promises that before depriving a citizen of life, liberty or property, government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional. Suppose, for example, state law gives students a right to a public education, but doesnt say anything about discipline. Before the state could take that right away from a student, by expelling her for misbehavior, it would have to provide fair procedures, i.e. “due process.” How can we know whether process is due (what counts as a “deprivation” of “life, liberty or property”), when it is due, and what procedures have to be followed (what process is “due” in those cases)? If due process refers chiefly to procedural subjects, it says very little about these questions. Courts unwilling just to accept legislative judgments have to find answers somewhere else. The Supreme Courts struggles over how to find these answers echo its interpretational controversies over the years, and reflect the changes in the general nature of the relationship between citizens and government. In the Nineteenth Century government was relatively simple, and its actions relatively limited. Most of the time it sought to deprive its citizens of life, liberty or property it did so through criminal law, for which the Bill of Rights explicitly stated quite a few procedures that had to be followed (like the right to a jury trial) — rights that were well understood by lawyers and courts operating in the long traditions of English common law. Occasionally it might act in other ways, for example in assessing taxes. In two decisions at the very beginning of the Twentieth Century the Supreme Court held that only politics (the citizens “power, immediate or remote, over those who make the rule”) controlled the states action setting the level of taxes, but if the dispute was about a taxpayers individual liability, not a general question, the taxpayer had a right to some kind of a hearing (“the right to support his allegations by arguments however brief and, if need be, by proof however informal”). This left the state a lot of room to say what procedures it would provide, but did not permit it to deny them altogether. Another early case suggested flexibility about the timing and nature of a required hearing. When a health inspector decided some chickens in cold storage had rotted, he didnt have to hold a hearing before he could seize and destroy them, so they could not be sold; but the owner of the chickens could sue the inspector afterwards, and if it convinced the jury that the chickens were not rotten, make the inspector repay their value.
Posted on: Fri, 31 Jan 2014 18:01:18 +0000
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