Current Trends in Due Process Lawsuits Essay

Americans are aware that they are entitled to "their day in court" but may not fully understand the full range of due process protections that are contained in the Fifth and Fourteenth Amendments to the U.S. Constitution. To determine the facts, this paper reviews the relevant literature to provide a discussion concerning the meaning, history and importance of the constitutional concept of "due process" as contained in the Fifth and Fourteenth Amendments to the U.S. Constitution. A brief discussion analyzing the conflicting positions of Justices Hugo Black and Felix Frankfurter with respect to the incorporation of American citizens' rights under the due process clause of the Fourteenth Amendment, and how these Justices' positions helped develop the concept of due process is followed by a summary of the research and important findings concerning due process in the conclusion.

.Review and Discussion

According to Black's Law Dictionary, "due process of law" means "an exercise of the powers of the government as a settled maximus of law permit and sanction, and under such safeguards, for the protection of individual rights as those maximus prescribed for the class of causes to which the one in question belongs" (1991, p. 500). By contrast, the due process clauses are found in the U.S. Constitution's Fifth (1791) and Fourteenth Amendments (1866) that protect individuals from government actions of different sorts. In this regard, there are two aspects to the constitutional due process clauses as follows:

1. Procedural. This aspect guarantees an individual fair procedures;

2. Substantive: This aspect protects an individual's property from unfair governmental interference or taking (Black's Law Dictionary, 1991).

While these protections appear straightforward and appropriate for the protection of basic civil liberties, there have been numerous interpretations of the constitutional procedural and substantive due process clauses over the years. For instance, Perry (1999) reports that, "Because there is often disagreement about whether the procedural protection government has provided in depriving a person of life, liberty, or property is the process of law that is 'due,' or is all the process that is 'due,' courts -- and ultimately the Supreme Court -- often have to decide whether the kind or amount of process government has provided is 'due process of law'" (p. 53). In the seminal case, Hurtado v. California (110 U.S. 516, 534, 1884), though, the Supreme Court held that the Fourteenth Amendment due process imposes the same procedural requirements on state governments that the Fifth Amendment due process imposes on the federal government (Perry, 1999).

Likewise, many constitutional scholars maintain that the substantive doctrine is incongruent with the original meaning of the due process clauses set forth in the Fifth and Fourteenth Amendments (Williams, 2010). In this regard, in case, Regents of the Univ. Of Mich. v. Ewing, 474 U.S. 214, 225-26 (1985) (quoting Moore v. E. Cleveland, 431 U.S. 494, 543-44 (1977) (White, J., dissenting)), the Supreme Court, in a divided opinion, conceded that substantive due process decisions were "suggested neither by [the] language nor by [the] preconstitutional history" of the due process clauses and were "nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments" (cited in Williams, 2010, p. 410).

With respect to due process, the Fifth Amendment to the U.S. Constitution contains protections against being held accountable for a crime unless a grand jury finds probable cause, double jeopardy, or being compelled to testify against oneself, and most specifically, that no person in the United States shall "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." According to Cornell University's Legal Information Institute, "While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has interpreted the Fifth Amendment's provisions as now applying to the states through the Due Process Clause of the Fourteenth Amendment" (Fifth Amendment, 2014). The Fifth Amendment to the U.S. Constitution applies to the federal government only and these protections were extended to the states by virtue of the Fourteenth Amendment (Fifth Amendment, 2014). During the 75-year period that elapsed between the ratification of the Fifth Amendment and the Fourteen Amendment, courts developed a conceptualization of "substantive due process." According to Chapman and McConnell, "The original understanding of the Fifth Amendment did not have a 'substantive due process' component, but the original understanding of the Fourteenth Amendment did" (2012, p. 1673).In addition, there was also a general consensus that at the time the Fifth Amendment was ratified that "due process meant that the executive could not deprive anyone of a right except as authorized by law, and that to be legitimate, a deprivation of rights had to be preceded by certain procedural protections characteristic of judicial process: generally, presentment, indictment, and trial by jury" (Chapman & McConnell, 2012, p. 1673).

The manner in which these due process clause have been applied over the years have shaped modern American jurisprudence. For instance, in the well-known case, Miranda v. Arizona (384 U.S. 436, 1966), the Supreme Court expanded Fifth Amendment protections to include non-courtroom settings that involved threats to personal freedoms (Fifth Amendment, 2014). According to Zelman (2008), Miranda v. Arizona also extended due process protections to individuals from interrogations while under custodial control. In the case, Kelo v. City of New London (545 U.S. 469, 2005), the Supreme Court's 5-4 controversial majority decision held that "the city's taking of private property to sell for private development qualified as a 'public use' within the meaning of the takings clause. The Fifth Amendment did not require 'literal' public use, but the 'broader and more natural interpretation of public use as 'public purpose'" (cited in Kelo v. City of New London, 2014, para. 2).

The Fourteenth Amendment to the U.S. Constitution extended the due process protections in the Fifth Amendment to the several states. In this regard, the Fourteenth Amendment specifically stipulates that, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law." In addition, the Fourteenth Amendment adds that no state shall "deny to any person within its jurisdiction the equal protection of the laws" (Fourteenth Amendment, 2014). In the case, Lochner v. People of the State of New York (198 U.S. 45, 1905), though, many constitutional scholars maintain that the Court erred, and this error has left a lasting legacy on the interpretations of substantive due process in the United States. In this regard, Bernstein (2003) suggests that in Lochner, "The U.S. Supreme Court exceeded its legitimate judicial role by reading the right of "liberty of contract" into the Fourteenth Amendment's Due Process Clause, despite the absence of textual support for this right" (p. 1).

Since the Lochner case, the Fourteenth Amendment has been used in a number of cases to delineate the specific rights of American citizens. According to Cornell University's Legal Information Institute, the Fourteenth Amendment's "equal protection of the laws" reference has been the focal point of a number of precedential cases, including: (a) Brown v. Board of Education (347 U.S. 483, 1952, 1954) involved racial discrimination; (b) Roe v. Wade (410 U.S. 113, 1971, 1973) concerning reproductive rights; (c) Bush v. Gore (00-949, 2000) concerning election recounts; (d) Reed v. Reed (404 U.S. 71, 1971) concerning gender discrimination; and (e) University of California v. Bakke (438 U.S. 265, 1997, 1978) concerning racial quotas in education.

Supreme Court Justice Hugo Black was opposed the notion of substantive due process and his "jot for jot" account of substantive due process in Graham v. Connor (490 U.S. 386, 395, 1989) makes this position clear: "Because the Fourth Amendment [i.e., unreasonable searches and seizures] provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims" (cited in Massaro, 1998, p. 1087). Justice Black concurred, though, that the Fourteenth Amendment extended due process protections to the state level. Dissenting in Adamson v. California (332 U.S. 46, 74-75, 1947), Justice Black wrote: "[H]istory conclusively demonstrates that the language of the first section of the Fourteenth Amendment... guarantee[s] that.., no state [can] deprive its citizens of the privileges and protections of the Bill of Rights" (cited in Massaro, 1998, p. 1087).

By contrast, Associate Justice Felix Frankfurter firmly believed in substantive due process as a matter of law and as being necessary for the proper functioning of the American judicial system in protecting individual rights. In this regard, Justice Frankfurter's observation that, "The history of American freedom is, in no small measure, the history of procedure" (cited in.....