Legal Principle, Due Process, Encapsulates All the Essay

legal principle, Due Process, encapsulates all the guarantees to the rights of an individual or a group. The provision for these rights in the Constitution simply means that the interests of the individuals and groups covered by it are protected. The fundamental human rights include right to life, liberty, and the acquisition of property. Some people believe that individuals should also have a right to the pursuit of happiness. A critical look at Due Process reveals that it links to justice and fairness in every proceeding. The practice of viewing Due Process in this way is known as Procedural Due Process (Rogers et al., 2007).

In isolation, the term "due process" may refer to the manner in which court proceedings are organized and administered. It then means that due process of the law could also be those statutes the legislative arm enacts. The Constitution clearly defines and separates Federal and State powers. It also provides protection for the fundamental rights of individuals which include, but are not limited to, trial by a jury if the offence is a criminal case. The fifth and the fourteenth amendments greatly propagate the due process of law. And this simply means that, by them, we are protected against certain deprivations such as the deprivations of life, liberty, and the acquisition of property (Rogers et al., 2007).

5th Amendment

The Fifth Amendment states that we have the right to due process. What this means is that, in the event of a criminal accusation, the plaintiff is expected to present reasonable evidence to show that the defendant is guilty. Due Process also means that when a plaintiff presents strong evidence, the defendant will be taken to court swiftly. This process is called an arraignment and it is one of the guarantees the Fifth Amendment gives (Fradella, 2011).

Generally speaking, in all things, the Fifth Amendment protects citizens against any kind of abuse from the government and/or government agencies. This Fifth Amendment is part of the Bill of Rights. However, the creation of the Bill of Rights marked the beginning of other forms of conflict. These forms of conflicts are not fought by the military; instead, they are fought by prosecutors, defense attorneys, and our Judicial System. These conflicts do not have attractive names such as the Civil War, Iraqi Freedom, or War on Terror. The conflicts being talked about here are known as Case Laws (Fradella, 2011).

The Fifth Amendment stipulates that no person shall be held accountable for a capital or an infamous crime unless a Grand Jury gives proclamation to that effect, the only exception being in cases arising from land or naval forces, or in the Militia, at the event of war or public danger; nor shall any person be made to suffer twice for the same offence in terms of facing threat to life or amputation; nor shall a person be compelled in any criminal case to be a witness against himself; nor shall such a person be deprived of the right to life, liberty, or ownership of property, without due process of the law; nor shall there be confiscation of private property without due compensation. This amendment focuses on two major legal procedures: the Due Process Clause and the right to remain silent even during routine interrogation. However, it is presented in five categories of clauses, namely: Grand Jury Clause, Double Punishment Clause, Self-Incrimination Clause, Due Process Clause, and Routine Investigation Clause (Fradella, 2011).

14th Amendment

The fourteenth amendment empowers the Federal government to ensure that the laws made by the States are in line with the Constitution and the Bill of Rights. This opens up a new clause and adds the essence of fundamental fairness to the discussions on the topic of Due Process. Fairness means to be just and impartial. That is exactly what Due Process is all about and is what the Federal and State laws are supposed to guarantee the citizens (Fradella, 2011).

The fourteenth amendment has made a big impact on the United States. The interpretation of this particular amendment has generated major controversies and debates. Be it as it may, without the fourteenth amendment, the United States wouldn't have been where they are now. It has really changed major areas of the nation's governmental system (Fradella, 2011).

These days, freedom of speech, liberty, civil rights, gender and race equality, equal protection, due process of the law, and even fundamental human rights, have become common expressions in America. Though these have become household expressions, the American citizens didn't come by them easily.Those expressions are phrases that the people have picked up from the United States Constitution, the newspapers, the television, and other mass media outlets. Before long, the expressions have penetrated into their daily conversations (Fradella, 2011).

Basic human rights such as the freedom of speech, liberty, and equal treatment, are referred to in court as civil rights. The U.S. considers these as fundamental rights of which no one should be denied just on account of their sex, race, or religion (Fradella, 2011).

What we have been discussing is one of the most important amendments in America: the Fourteenth Amendment. The fourteenth amendment has really permeated deeply into the lives of Americans thereby forming part of their values and cultural practices today (Fradella, 2011).

Though the thirteenth amendment is famous for freeing the slaves, the fourteenth which was ratified in 1868 gives them true freedom. The fourteenth amendment gives every American the right to be treated with fairness, and not be marginalized in any way. Along with the equal protection clause, the 14th amendment also defines who is a citizen of United States. Prior to that, there has been a misconception of who is really a citizen. Long after that, the Americans discovered how controversial this Amendment really is, and how much change it would bring (Fradella, 2011).

Historic Significance

In 1787, a United States Constitution was drafted in which there was a system of checks and balances. This system was established by the mere creation of the executive, legislative and the judicial arms of government (Rosen).

People who framed Constitution didn't think about the need to incorporate a particular right in the bill related to rights. In the beginning when the Bill of Rights was designed it wasn't broadly consisted of all the citizens, particularly community of color identified as slaves. The situation remained same till the north won the civil war, after that both the Bill of Rights including the Constitution was modified and improvement was made. The thirteenth amendment gave the surety that the slavery was fully abolished (Rosen).

People started to feel the need of constitution in black and white is an unconditional requirement, by the end of the 18th century. The Constitution was not all-encompassing of some particular rights. "In the constitution there was a nonexistence of explicit assurances of rights that must be given to every individual like, the right of liberated speech, liberty of religion, Due Process of law, and liberty from legislative seek out and arrest." (Legal Dictionary, Due Process).

Federalist and all those who were not Federalist had extremely vigorous arguments that the Federalist was in opposition and those who were not Federalist were aiming for the bill of rights. Alexander Hamilton was the head of the Federalist and he was completely against counting the bill of rights for the reason that he didn't see the requirement. The majority of the Federalists were slave possessors there was no requirement to register explicit rights because the nationwide administration could implement merely the partial powers approved for it into the Constitution. The restrictions of national government authority were to make certain that the people were included from national interference. James Madison, induced the bill related to rights was essential to make sure that approval was given for the Constitution and started to outline the real bill pertaining to rights (Ball, 2006).

By the year 1937, the supreme court of U.S. had superfluous ideas related to the judicial purpose and law that had subjugated its effort for foregoing half of the century. Researcher and intellectuals have explained these beliefs related to law as "formal behavior," "legal belief," or "conventional legal thinking." Conventional thinking offered a wide-ranging clarification of the basis of law and its character, the judge's responsibility in a democracy, and connection of law with the greater society. Its desertion disadvantaged the righteousness of an authoritative advisory and legitimating pattern that vindicated the authority of legal assessment. They swiftly strived to turn up through an evenly convincing alternate (Gunther, 1994).

One of the major difficulties that conventional thinking had professed to decide was the matter of impartiality. In implementing the influence of legal evaluation, judges disturb the determination of independent preponderance. How can they legally carry out their duties, devoid of commanding their individual and personal principals and political inclinations?

After the year 1937, the Justices resisted to offer a reasonable reaction to that dispute. Two most important potentials come into view. Felix Frankfurter insists on….....