Talk:Due process/Archive 1

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Archive 1

Opening comments

Looks like this page has been comfortably settled for a while now, but I just added a good chunk of information about the incorporation doctrine. Does anyone else feel that it might merit its own page, with the substantive due process section merely mentioning and linking to it? In truth, substantive due process is generally associated with the Lochner era decisions that placed severe restrictions on laws regulating economic activity, or, more recently, the right to privacy jurisprudence. Incorporation, while it does technically fall under the auspices of substantive due process, is a broad enough topic that it might deserve its own article, even if it's a far smaller one than this main article. Hell, it might even make sense to break this page down into two articles: substantive and procedural due process. Each topic covers a vast area of constitutional law, though they obviously do share the same two constitutional provisions as textual anchors. I'm curious about what others think about splitting them off--are there concerns that, by breaking down and elaborating on many specialized areas of American constitutional law, we'd be exhibiting an American bias? SS451 02:32, 25 Aug 2004 (UTC)

I totally agree that the "incorporation" section should be moved. Conveniently, an article named Incorporation (Bill of Rights) already exists. I would very much like to move much of the text of the incorporation section to that article. What I shall do, so as to avoid angering anyone, is the following. Right now, I'm going to copy most of the incorporation section text and simply paste it into the separate incorporation article. In about a day, unless I hear objections, I shall erase most of the incorporation section, but let a highly visible link to the incorporation article remain. Best, Hydriotaphia 03:48, Dec 26, 2004 (UTC)

I have erased the last paragraph of the incorporation section, and placed an edited form thereof in the Elk Grove Unified School District v. Newdow article, where it belonged due to its subject matter. Hydriotaphia 06:27, Dec 26, 2004 (UTC)

I just did some reorganizing, to clarify some of the statements about incorporation, as well as to de-Americanize the article. I'm still not satisfied with the relationship of incorporation to substantive due process as described--maybe there's someone out there more familiar with the case history? I'm tempted just to throw the whole incorporation section under substantive due process, though I'm reluctant to consider it just a simple application of that concept.

Re: exceptions to incorporation, to my knowledge, the only two provisions of the Bill of Rights that the Supreme Court has explicitly said are NOT incorporated are the grand jury indictment and civil jury provisions. I don't know about the Third, but the Second and the Eight on bails/fines the Court simply hasn't ruled definitively on, though some justices (like O'Connor) and some Circuits on the bails/fines provision have said that it is/should be incorporated. We just don't have an actual Supreme Court majority holding yet. The Court has said that due process does restrict "irrational" fines in some way (even civil jury awards), but it did so without saying that this was coextensive with the Eighth Amendment protection.

I wonder if the United States due process law should be given its own section, under Due process (United States) and Due Process Clause, turning this article into a general overview of due process internationally, if that's possible. I know that the concept pops up in international law, but I don't know if other nations actually use the same term. I hope someone can flesh this out to truly internationalize the article, maybe with an overview of the differences and similarities of applications across the world. Good luck! --Postdlf 12 January 2004, 18:19 PM (EST)

Also, we need a discussion of the concepts of "notice" and "hearing" under procedural due process. --Postdlf

Hi, I did some fine-tuning of this "due process" entry, for example by inserting quotes from Magna Carta and from James Madison. --Ahyman@aol.com, 21 April 2004.

The ruling in Lawrence v. Texas was certainly broad enough to cover private sexual acts whether straight or gays, but the case itself dealt with a law that criminalized only homosexual sodomy. Just calling it a "sodomy" case is misleading as well, and was part of the mistake made in Bowers v. Hardwick according to the Lawrence majority, who thought Bowers trivialized the liberty at issue. They invalidated the anti-sodomy law because it infringed what they saw as a liberty right to intimate sexual conduct between consenting adults in private. That's why it's improper to characterize it as just a "homosexual sodomy" case, or even less properly as a "heterosexual and homosexual sodomy" case.

I'm not (yet) going to undo the recent changes in language regarding the controversiality of substantive due process, though I think they are misframing the present situation. There is not a Justice on the bench of the Supreme Court today who opposes substantive due process in its entirety...there is no opposition on the Court (and very little off) as to whether the Clause imposes substantive restraints on legislators. The sole question is what restraints—what traditions do we look to in order to decide what unenumerated rights the Constitution protects as part of "liberty." Read Scalia's dissent in Lawrence and where the debate is at present will become clear. If anyone can contradict this, please do...it's a difficult area of law, but I think that I am right on this. Incorporation especially is accepted without comment in Court opinion after opinion.

One question I have is whether Incorporation is properly seen conceptually as part of substantive due process, or whether it is more properly viewed as an entirely separate doctrine. The two seem to merge in my mind, and that is how I have written about it in this article, though I retain doubts. Postdlf 4:21 22 Apr 2004 (UTC)

I think this discussion of due process is mostly on track. Postdlf has done a good job.

Regarding "substantive due process," Justices Scalia and Thomas are pretty clearly on record stating that it is an "oxymoron." See United States v. Carlton, 512 U.S. 26, 39-40 (1994) (Scalia, J., concurring in the judgment, joined by Thomas, J.). They have argued that there is no such thing as substantive due process, but that procedural due process is okay. Even in the recent Lawrence case, Scalia's dissent argued that "The Fourteenth Amendment expressly allows States to deprive their citizens of 'liberty,' so long as 'due process of law' is provided."

Personally, I believe that the framers of the original Constitution did not intend to draw this distinction between substantive and procedural due process, although they certainly employed the distinction in other contexts (e.g. in the Judiciary Act of 1789). For them, the word "process" was a technical term, and so I don't think Scalia and Thomas are 100% right to call substantive due process an "oxymoron." However, the position of Scalia and Thomas is not unprecedented on the Supreme Court, and it appears that some of the Framers of the 14th Amendment probably had the same misunderstanding about "process" that Scalia and Thomas have. My point is not that the Wikipedia article about Due Process should endorse one viewpoint or another, but rather that it should recognize the continuing difference of opinion on this matter.

Incidentally, my personal view is that Justice Hugo Black was very close to the truth about all of this, when he wrote that "the only correct meaning of that phrase [due process of law] is that our Government must proceed according to the 'law of the land;' that is, according to written constitutional and statutory provisions as interpreted by court decisions." In Re Winship, 397 U.S. 358, 382 (1970)( Black, J., dissenting). This is basically what Magna Carta said, and I think this is what the framers of the 5th Amendment intended. Due process was mainly (though not eXclusively) a limitation on the executive and judicial branches, and the Court introduced both procedural and substantive due process to limit Congress pretty much sua sponte (i.e. on their own initiative).

The slight modifications I've made here and there in the article make the article a bit more neutral about all these issues, without taking any positions. I hope that's helpful. By the way, I'm glad that the Privileges and Immunities Clause was mentioned in this article, because many scholars believe that incorporation is achieved by that clause instead of by the due process clause. Email me if you like, to ahyman@aol.com. I'm user Ferrylodge, and today is April 28, 2004.

What Scalia really argued in his dissent in Lawrence (and Thomas and Rehnquist who joined it) was that substantive due process protected only fundamental liberty, not just "liberty" period. He doesn't quarrel with unennumerated rights, or with substantive due process protecting fundamental liberty. At the very least, he has impliedly accepted that it exists as a valid and continuing constitutional doctrine, though the other Justices apply it in circumstances that he wouldn't. Here's the key passage from Scalia's Lawrence dissent making this clear (which follows right after the previously posted quote):

Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection--that is, rights which are "'deeply rooted in this Nation's history and tradition,'". All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest. (footnotes and citations omitted)

Footnote 3 of his dissent shows that even Scalia believes that rational basis review may strike other laws that don't violate fundamental liberty interests, but are simply insufficiently justified.

The Court is quite right that "history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." An asserted "fundamental liberty interest" must not only be "deeply rooted in this Nation's history and tradition," but it must also be "implicit in the concept of ordered liberty," so that "neither liberty nor justice would exist if [it] were sacrificed." Moreover, liberty interests unsupported by history and tradition, though not deserving of "heightened scrutiny," are still protected from state laws that are not rationally related to any legitimate state interest. (citations omitted)

As I originally wrote in this article, the only disagreement among the present Court and among the vast majority of present legal scholars is where to apply substantive protections under due process, not if.

I'm not going to undo your changes right now—I hope that reconsidering this, you'll find a better way to state the issue yourself, because the current language overstates the disagreement. If not, I'll tackle this article again later when finals are over... ; ) Postdlf 3:54 29 Apr 2004 (UTC)

Ferrylodge, hopefully we'll both be happy with the last edit I did to the final paragraph. You're right about Scalia and Thomas believing that substantive due process is a bad doctrine, but they have taken more to arguing that the Court is misapplying it rather than stubbornly asserting every time the issue arises that the doctrine is invalid (though I think Scalia's continued use of quotation marks around "substantive due process" are intended scornfully). I think my last changes reflect this pretty well. So we were both right, basically. Don't you love when that happens? Postdlf 14:23 29 Apr 2004 (UTC)

I have not reviewed Postdlf's most recent changes yet, because they occurred while I was writing this response . . . .

As Postdlf has requested, I have reconsidered the degree to which sitting Supreme Court Justices like Scalia and Thomas accept the doctrine called "substantive due process." As I noted previously, I personally disagree with Scalia and Thomas that the word "process" was intended to be a purely procedural term. However, I still submit that Scalia and Thomas do hold this view (as do a large number of legal scholars), judging from their own judicial opinions.

I mentioned two cases, in this regard: Carlton and Lawrence, although there are other pertinent cases as well. Postdlf has partly addressed Lawrence, but not Carlton. Here's what Scalia and Thomas said in Carlton:

"I believe that the Due Process Clause guarantees no substantive rights, but only (as it says) process."

They also wrote:

"If I thought that 'substantive due process' were a constitutional right rather than an oxymoron, I would think it violated [in this case]."

So there really is no ambiguity about how Scalia and Thomas felt about the doctrine of substantive due process. Now, it could conceivably be that Scalia and Thomas have since changed their minds, or will change their minds in the future. I am not ruling this out. However, the quotes presented by Postdlf are not persuasive that this has occurred.

Turning to Lawrence, Postdlf provides the following quote from Scalia's dissent:

"Our opinions applying the doctrine known as 'substantive due process' hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called 'heightened scrutiny' protection--that is, rights which are 'deeply rooted in this Nation's history and tradition,'. All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest. (footnotes and citations omitted)"

Note the first two words: "Our opinions..." Scalia is arguing that the Court majority is not being consistent with its previous opinions. He is NOT saying that he agrees with those previous opinions. Postdlf also quotes Scalia's footnote 3, but please observe that that footnote occurs in the very paragraph that Postdlf quoted above. (Scalia put footnote 3 immediately before the last sentence that begins with "All other liberty interests . . ."). So Scalia is saying how the Court has rightly construed its previous opinions, and how it has wrongly construed its previous opinions, and is not saying that he agrees with those previous opinions. In the same Lawrence dissent, Scalia took the same approach to stare decisis, chastising the Court's inconsistency in not adhering to the theory of stare decisis that the Court had announced in its Casey decision, even though Scalia deplores that theory.

Please note that I'm not trying to advance any personal opinions here. Just trying to be accurate. Even if Scalia and Thomas woke up this morning and decided to repudiate the view that the word "process" refers only to procedure, still a large segment of scholars do believe that. I don't, but they do.

Certainly, this was a common view when the 14th Amendment was written, and even Abaraham Lincoln shared that view. See 4 COMPLETE WORKS OF ABRAHAM LINCOLN 211 (John G. Nicolay & John Hay eds., 1894) (1858) (“The Constitution itself impliedly admits that a person may be deprived of property by 'due process of law'”). Also see JOHN BOUVIER, A LAW DICTIONARY ADAPTED TO THE CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA AND OF THE SEVERAL STATES OF THE AMERICAN UNION (6th ed. 1856) (defining “process” as the “means or method of accomplishing a thing”).

I will now go and take a look at Postdlf's most recent changes which occurred while I was writing this response, although it might have been more efficient to hash this out in discussion first. Ferrylodge, April 29.

OK, I have just edited the last sentence and a half so that they read as follows:

"even they have joined Court opinions that employ the doctrine, and have in their dissents taken more to arguing over how substantive due process should be employed based on Court precedent. In other words, the main debate in recent decades within the Court over substantive due process has been more about where to apply it, and less about whether it should be applied at all."

I'm somewhat confident that this is correct, but I'd still appreciate if Postdlf would please cite me a case or two where Scalia and Thomas "joined Court opinions that employ the doctrine." Keep in mind that there's a difference between joining an opinion and concurring in a result. Cheers. Ferrylodge, April 29.

Washington v. Glucksberg, for one. The case did not extend the protections of the doctrine to the conduct at issue (assisted suicide), but Rehnquist's majority opinion (at part II) describes substantive due process as a fact under the Due Process Clause, without a hint of criticism, in explaining why the liberty at issue was not fundamental enough to be covered.

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.

521 U.S. 702, 719-20 (1997) (citations and footnotes omitted). Scalia and Thomas both joined Rehnquist's opinion without issuing separate concurrences. Now something could be made of the fact that they merely joined an opinion that refused to extend a substantive due process protection, but the Court declined protection by applying the doctrine and defining its limits, without any question as to the doctrine's validity (as is clear from Rehnquist's very affirmative language, admittedly different from Scalia's Lawrence dissent).

I agree that Scalia and Thomas did not likely have a change of heart on this issue. However, they've definitely changed their stance by not raising a frontal assault on substantive due process every time it comes up, finding it more effective to use it to limit it rather than just deny it. The ground they've given on this has unavoidably strengthened the doctrine by their implicit acceptance and has effectively removed the debate over its existence from Court opinions (compare it with Brennan and Marshall's unyielding insistence that the death penalty was unconstitutional in every death penalty case towards the latter part of their tenures).

I'm fine with the last changes you made to the article, so we're in agreement on the current language of the last paragraph. It's good to see another legal thinker on here. Postdlf 7:14 29 Apr 2004 (UTC)

Your quote from Glucksberg is as follows:

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.

The third and fourth sentences merely describe the Court's previous cases. The first sentence is completely uncontroversial, because everyone agrees that the Due Process Clause forbids the executive branch from doing stuff procedurally or substantively if it is forbidden to do so by law, even if the liberty threatened is more subtle than liberty from physical restraint (all of this is approximately the original meaning from Magna Carta which has nothing to do with procedural due process or substantive due process). That leaves the second sentence of your Glucksberg quote: "The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests." Seems to me that this just clarifies the previous statement that "liberty" means more than liberty from physical restraint.

So, I'm very dubious that Scalia and Thomas have joined Court opinions that employ the doctrine, except in the technical sense that the doctrine may have been employed in dicta. I have slightly edited the paragraph in question, so that it says Scalia and Thomas have joined opinions that "do not challenge" substantive due process instead of opinions that "employ" substantive due process. However, I'm open to any further case cites that show Scalia and Thomas have voted to employ this doctrine. Ferrylodge, April 29.

That's fine...I was myself thinking that "employ" was a poor choice of words. I think "do not challenge" may be too far in the opposite direction (maybe "recognize"?), and I don't think Glucksberg's use of it was merely dicta, but your change is good enough for me in the current context of the paragraph. Postdlf 2:56 30 Apr 2004 (UTC)

I've also deleted the assertion that Griswold v. Connecticut was a substantive due process case. I had not previously noticed this assertion. Actually, Griswold is more accurately described as a case involving "penumbras" created by the Bill of Rights. This "penumbra" concept was employed in the Griswold opinion by its author, Justice William O. Douglas, and he based it on things like the Fourth Amendment's guarantee of privacy from unreasonable searches and seizures. Douglas returned to this subject in his opinion concurring with Roe v. Wade (in Roe's companion case of Doe v. Bolton):

"There are, of course, those who have believed that the reach of due process in the Fourteenth Amendment included all of the Bill of Rights but went further. Such was the view of Mr. Justice Murphy and Mr. Justice Rutledge. See Adamson v. California, 332 U.S. 46, 123, 124 (dissenting opinion). Perhaps they were right; but it is a bridge that neither I nor those who joined the Court's opinion in Griswold crossed."

Douglas did not view Griswold as doing any more than applying the Bill of Rights against the states. Ferrylodge, April 29

You're correct about Douglas's opinion, but the concurrences present a problem with strictly limiting Griswold to just that line of reasoning. White's concurrence and Goldberg's (which was joined by Brennan and Warren) both explicitly invoked substantive due process (with Goldberg also relying heavily on the Ninth Amendment). How the Court has subsequently addressed it is problematic as well. I could be wrong, but I don't believe that the "penumbra" theory has been used by the Court since—I believe Roe referred to it, but only in saying that either penumbras or substantive due process could be used to find the relevant privacy interest, and subsequent opinions have just used substantive due process as the basis. Washington v. Glucksberg, in the blockquote above where it lists "marital privacy" as one of the fundamental liberties protected by substantive due process, actually cited Griswold for this proposition. How Griswold specifically acts as a precedent of legal reasoning is murky at the very least.

I've been thinking about whether substantive due process should be made into a separate article because of how much there is to discuss. The topic needs to be expanded and some time taken to address each of the fundamental liberties that have been protected under it. Right now the examples are too limited to the more recent controversies of abortion and homosexuality. I'd like to see its application explained in other areas, such as marriage, childrearing, for which there is a longer history of Court application and traditional recognition of those liberties. Postdlf 3:30 30 Apr 2004 (UTC)

Sure, it might be useful to have a separate article on SDP. I'd leave this brief summary that we've worked on the way it is, though. It's a quick, handy reference. If you do a separate article, I assume you want to focus on Pierce and Meyer. To me, these cases don't mean a whole heck of a lot, because they were decided in the midst of the Court's other crazy decisions using SDP to prevent economic regulation. Also, Justice Kennedy has pointed out (I think in Troxel v. Granville) that Pierec and Meyer could have been based on the First Amendment instead (freedom of religion and assembly). If you write about these two old cases, don't forget that Justice Holmes wrote a dissent in Meyer, although in a separate companion case. Ferrylodge, April 30

I have just started to focus on Postdlf's list of procedural rights explicitly contained in the Constitution (or maybe someone else wrote this list). I agree with most of them, but not all. The right to receive just compensation for takings (in the 5th Amendment) is a substantive right; uncompensated takings are forbidden no matter what procedures the government uses. Many of the other listed rights are correctly characterized as procedural. Then there are some in a gray area, so I'll leave them for now. But I will delete the Takings Clause. Also, I've clarified the 6th Amendment right to a speedy trial, and added the Article III right to a jury trial (whether the crime is committed in a state or in another location). Ferrylodge, April 30

I didn't create the list, and I had my doubts as to whether that list should be under this topic at all, but when I started editing this article, I didn't want to replace everything that was previously contributed, so I just cleaned it up. Feel free to change it as you feel necessary. Postdlf 2:31 1 May 2004 (UTC)

Hi, I just added an external link to an article in the Akron Law Review that provides extensive legal background and references regarding the Due Process Clause in the US Constitution. Seems like this would be a useful supplement to this Wikepedia article that I've helped to edit (see comments above). Ferrylodge, 22 January 2005.

Incorporation = Substantive Due Process

Latest comment: 15 years ago2 comments2 people in discussion

I must admit that I'm a bit confused as to why incorporation is currently a completely separate section from substantive due process, due to the general justification for incorporation that it involves applying the substantive component of "liberty" under the Due Process Clause of the Fourteenth Amendment to the states. Thus, incorporation is only a subcategory of substantive due process, and our article's organization (as well as the substance of the discussion on incorporation) ought to reflect that.

If there are no objections within the next week or so, I will make the necessary organizational changes and add a brief explanation in the article of why incorporation is a specific application of substantive due process. SS451 04:03, May 31, 2005 (UTC)

Because it is not an entirely resolved matter (academically) that incorporation need proceed via substantive due process. I cite Randy Barnett efforts in this field to restore the privleges and immunities cause of section 1 of the 14th amendment. (which is to say that if you believe that the slaughterhouse decision should be reversed then you can achieve incorpotation without substantive due process) --Pearlg 19:48, 26 Jun 2005 (UTC)

As far as the Court has ruled however, the P&I clause of the 14th is nothing more than an anti-discrimination provision regarding out-of-state residents. Postdlf 01:05, 27 Jun 2005 (UTC)

Um, no. That is not how the court neutered the privleges and immunities clause of the 14th amendment. The Privleges and Immunities clause of Article IV is the anti-discrimination provision regarding out-of-state residents. The Article IV P&I reads: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." It is generally accepted that this clause protects out-of-state citizens when they travel to other states against treatment in a manner different from that of citizens of those states. Conversely, the 14th amendment P&I reads: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Notice the difference. The slaughterhouse decision did not say that this was merely a repeat of the one in Article IV. The Supreme court ruled that the Privledges and Immunities in the 14th amendment applied only to ex-slaves, not to butchers, and that it only protected rights of "national citizenship" which the court claimed did not include the "bill of rights".

Let me say, it is _dead_ wrong to say that incorporation depends on substantive due process. There is substantial support that incorporation derives from p&i and that due process is a poor basis for incorpotation. That the court persists in its current reasoning is a reflection that 1) incorporation would arise either way so "who cares" and 2) that advocates of majoritarianism and those opposing economic rights are worried about the possible implications of emending the (5-4) mistake in slaughterhouse that has been sustained primarily by silence and otherwise by mere dicta. --Pearlg 02:53, 27 Jun 2005 (UTC)

Look, we are dealing here in article that is first and foremost an attempt to describe the state of the law, not the state of a counterfactual body of law that might have resulted if the Slaughterhouse Cases had come out differently. It's fine to mention that there may well be a theoretical basis for using the Privileges and Immunities Clause to achieve incorporation, but to say that as the law currently stands, incorporation is not simply a sub-category of substantive due process is simply incorrect. Since it's been a long time since the last response here, I am going to wait a week for further comments before making the organizational changes necessary to indicate the incorporation doctrine's actual current legal status as a part of substantive due process. SS451 03:56, September 6, 2005 (UTC)

I edited the article to reflect the accurate status of the incorporation doctrine as an outgrowth of substantive due process. I also added a paragraph linking the two and noting that some feel that the P&I Clause is the better source, but that the Supreme Court doesn't agree. SS451 04:40, 21 September 2005 (UTC)

Everything needs to bee redone, it is much to jumbled up —Preceding unsigned comment added by 76.95.145.115 (talk) 02:21, 6 October 2009 (UTC)

Large Addition of ? original research

Latest comment: 19 years ago2 comments2 people in discussion

Large addition added by user: 68.7.204.241. Will post here where can be discussed. Appears mostly opinion without any references provided.—Gaff ^ταλκ 01:42, 25 October 2005 (UTC)

The edit in question can be seen here. I removed it because it was wholly POV advocacy. Postdlf 05:30, 25 October 2005 (UTC)

Due process in war

I'd like a person well versed on the topic to add a section on due process in war. For example, when killing "known" terrorist leaders in war by targetted missile strikes. In war, is there a moral necessity to ensure that someone is guilty?

Some of the questions I would like answered:

What about due process in war? What is the consensus on it?

Are foreign individuals entitled to due process by a different nation or military?

Is due process something we are morally obligated to provide someone, or is that a privilege granted by the state?

Page has leaned conservatively

Latest comment: 18 years ago1 comment1 person in discussion

I noticed the article started a bit sneeringly that due process is rationally only about process and then it bookended the current state of the law between that dismissal of substantive due process and other attacks on the concept. The only Justices whose views were discussed were Scalia and Thomas, despite the fact that they has never been in the majority in arguing that there is no substantive due process (SDP). It would please many conservative Federalist Society and "Constitution in Exile" legal activists.

If a conservative believed that 2 + 2 = 4, would that mean that a wikipedia article that said 2 + 2 = 4 "leaned conservative"? The article sneers at the concept of substantive due process - as far as it sneers at all - insofar as the written medium has the effect of rendering painfully clear that it is an oxymoron. Simon Dodd 14:23, 13 March 2006 (UTC)

Privacy

Latest comment: 17 years ago1 comment1 person in discussion

The article alludes that the notion of privacy rights began with Griswold, but I believe reference to Olmstead v. US (1928) is warranted. In his dissenting opinion, Justice Brandeis wrote:

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence"

CORRECTION: The generally accepted beginning of the notion of privacy rights precedes Olmstead. See e.g. The Right to Privacy, Samuel D. Warren and Louis D. Brandeis, Harvard Law Review, 1890. (can be found here http://www.lawrence.edu/fast/boardmaw/Privacy_brand_warr2.html) 161.7.2.160 16:24, 27 March 2007 (UTC) JCH

In america... Speaking from experience

In america, due process does not apply to you unless you can afford to fight for it. For example, If you are poor and you are represented by a state appointed public defender, you might as well plan on going back and forth to court for the next 9 to 12 months. Each time you go back to court it will be adjourned for some reason most likely having nothing to do with your individual case, i.e. schedule too full, busy with a trial, you took too long to agree to a plea bargain.

Requested move

Latest comment: 18 years ago6 comments5 people in discussion

Due process → Due process in the United States – The article deals almost exclusively with U.S. due process. The talk page should move with it, so that's why I'm proposing the move and not just cutting and pasting to a new article. After the move, Due process should be left with the original introduction paragraph and a "main" link to the new article. —Markles 14:43, 22 August 2006 (UTC)

Survey

Add "* Support" or "* Oppose" followed by an optional one-sentence explanation, then sign your opinion with ~~~~

Oppose. I support the reasons for the move, but not the proposed new name. I would support a move to Due process (United States) with standard parenthetic disambiguation so that editors could enter [[due process (United States)|]] and readers would see due process. With this proposed change, editors have to type [[due process in the United States|due process]] to achieve the same effect. Finally, due process in the United States is commonly referred to as "due process", not as "due process in the United States", so the proposed name violates the primary purpose of the article title: to specify the most common name used to refer to the subject of the article. --Serge 23:38, 25 August 2006 (UTC)
Oppose per Serge. By the way, this survey violates Wikipedia:Straw polls, which states that "Consensus must be reached about the nature of the survey before it starts. Allow about a week for this process." (Now, Wikipedia:Straw polls is just a guideline, not a policy, so it's not necessarily set in stone; but it should be abided by unless there's a specific reason to deviate from it. And in this case, abiding by it would have avoided the "oppose" votes that support in principle but must oppose to the specific proposal.) Ruakh 01:18, 26 August 2006 (UTC)
Oppose. Is it actually called "due process" in other countries? The article implies it isn't, what with the bit about "fundamental justice." Since the term comes from the Constitution of the United States, I don't see why Due Process shouldn't stay where it is. There can be links at the beginning or end of the article for similar rules in other countries, but there's no need to move the article, especially if the other procedures are not actually called "Due Process." SnowFire 20:50, 26 August 2006 (UTC)

Discussion

Can anyone answer SnowFire's question? Because that's a rather major point: if "due process" is a term that applies specifically to the U.S., then we can remove the ==Due process in the United States== section heading and promote all its subsections. (We'd then have to integrate the article-wide lead text with the lead text of the "Due process in the United States" section somehow.) And if it's not a term that applies specifically to the U.S., then we need to add a lot more information to the article — information about various other countries — before it makes sense to split off the U.S.-specific article. Ruakh 16:00, 27 August 2006 (UTC)

It was requested that this article be renamed but there was no consensus for it to be moved. —Mets501 (talk) 14:00, 28 August 2006 (UTC)

Possible POV Issue

Latest comment: 18 years ago1 comment1 person in discussion

The recent edits, by the 68.xxx IP address seem to be a bit one sided (although I agree) it should probably be reviewed.Mikelj 05:36, 23 October 2006 (UTC)

I've tried to be as neutral and objective as possible. Hopefully, the article is now improved. Maybe I'll wait awhile before doing anything else to it, so that anyone who wants to review it can do so, as it stands. Andrew 23 October 2006

Amar

Latest comment: 17 years ago3 comments3 people in discussion

Thanks, Kenosis, for putting the due process page into better format. Regarding the Amar quote, I think it's important. One of the main arguments against using the 14th Amendment's Privileges or Immunities Clause to incorporate the Bill of Rights against the states is that it would render the 14th Amendment's Due Process Clause superfluous. Amar concisely addresses this point, by showing that the 14th Amendment's Due Process Clause would not be superfluous at all. So, I'd like to keep that quote in there, if possible. 69.183.187.206 07:02, 25 October 2006 (UTC)Andrew

Sorry, I guess I missed this before making recent changes to this article. I do not think the Amar quote is appropriate here. The fact is that substantive due process is the legal basis for incorporation, and while it is all right to mention the alternate theory on this page, going into as much detail as there was is unnecessary. Such details should be primarily confined to the Privileges or Immunities Clause article. —The preceding unsigned comment was added by SS451 (talk • contribs) 10:38, 13 May 2007 (UTC).

I have considerably shortened and reinserted this material. Amar is offering an explanation of why the DP Clause exists in the 14th Amendment, and that seems very relevant to mention in this article. Certainly, it would be no more relevant in the P or I Clause article than in this one. However, I can see why it would be helpful to shorten this material, so I have done so.Ferrylodge 16:39, 13 May 2007 (UTC)

Relation to habeas corpus

Latest comment: 18 years ago1 comment1 person in discussion

I'm not in the legal professions but was recently in a discussion about habeas corpus, because of Bush's recent decision to abrogate common law going back to the Magna Carta. (Sorry to let my opinions intrude.) Anyway, it seems that the concepts of due process and habeas corpus must have a lot to do with each other, but the phrase "habeas corpus" never appears in the article on due process. So a layman is here requesting that the writers working on this article (who seem to have legal training) discuss the relation between the two ideas.

Hi. It's controversial whether "habeas corpus" is part of "due process." See here. Even if habeas corpus is part of due process, there are a zillion other aspects of due process that the courts have identified as well, so it would be difficult to name them all in one little Wikipedia article. Habeas corpus is explicitly discussed by the Constitution, in the "Suspension Clause" which explicitly gives Congress power to suspend habeas corpus under specific limited circumstances. That makes habeas corpus kind of unique, because Congress is not typically allowed to violate a right once it is deemed to be an aspect of due process. Of course, you're correct that habeas corpus is a very important right, and it's definitely protected by the Constitution, even if not by the Due Process Clause. Thanks for your comment.69.183.187.206 09:16, 2 November 2006 (UTC)

Excess material

Latest comment: 18 years ago2 comments1 person in discussion

Placing excess material just remove from text of article here for future reference. ... Kenosis 06:40, 2 November 2006 (UTC)

==Procedural due process==

Procedural due process is essentially based on the concept of "fundamental fairness". As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings. Procedural due process has also been an important factor in the development of the law of personal jurisdiction.

In the United States, criminal prosecutions and civil cases are governed by explicit guarantees of rights under the Bill of Rights and as incorporated under the Fourteenth Amendment to the States. Due process provides protection to the individual that statutes, regulations, and enforcement actions must at least meet (but can exceed), in order to ensure that no one is deprived of "life, liberty, or property" arbitrarily and without opportunity to affect the judgment or result. This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being punished, which would be tantamount to cruel and unusual punishment.[1]

In 1934 the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).[2]

==Substantive due process==

The courts have viewed the due process clause as embracing those fundamental rights that are "implicit in ordered liberty". Just what these rights are is not always clear. Some of these rights have long histories or "are deeply rooted" in our society.

The courts have largely abandoned the Lochner era approach (approximately 1890-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract.

Modern substantive due process doctrine protects various aspects of privacy, including bodily autonomy, private sexual activity (Lawrence v. Texas), contraception (Griswold v. Connecticut), and abortion (Roe v. Wade), as well as substantive protections of the Bill of Rights. However, there continues to be debate as to what may have been the Supreme Court's failures to protect enough of our basic liberties, and debate as to what may have been the Supreme Court's past abuses in defending activities that are not really protected by the the Due Process Clause. ... 06:40, 2 November 2006 (UTC)

I've replaced some of the above material, in keeping with the common-law jusrisdiction (most applicably the USA) to which it applies. ... Kenosis 07:00, 2 November 2006 (UTC)

Reformatting

Latest comment: 18 years ago5 comments2 people in discussion

It seems to me that maybe the recent formatting changes need to be thought out a bit more carefully. The following three subsections were earlier today part of the "substantive due process" section, but now they're not:

4.1 Development and use as legal doctrine 4.2 Criticisms 4.3 Judicial review of substantive due process violations

This is problematic, because all of these subsections involve substantive due process, and now they're part of a totally different section.

Hey, I don't mind changes, but I've spent quite a bit of time working on this page, and it kind of seems like these recent huge changes have thrown things into a bit of chaos. Shall I take a crack at reorganizing things again?

Also, "Personal Jurisdiction" is only one tiny part of procedural due process, and therefore does not merit its own subsection, especially since we can merely link to the separate Wikipedia page for "personal jurisdiction".... http://en.wikipedia.org/wiki/Personal_jurisdiction

Andrew 69.183.187.206 06:52, 2 November 2006 (UTC)

First year civpro, right? Like it or not, there is a whole globe to which to account here. It's a relatively short amount of time in which to expect demands to include appropriate credence in accordance with what the US Supreme Court has acknowledged to be other possible forms of justice in the world. That accounts for the preponderance of the last edits. No significant material has been removed, and what has been removed was placed just above, and most of that has been replaced in the article. ... Kenosis 07:05, 2 November 2006 (UTC)

No, I have been a practicing attorney for several years, with more than one law review article published, plus essays at Findlaw's Writ and elsewhere. I realize that "there is a whole globe to which to account here." I'd just like to discuss and be cooperative. Anything wrong with that?69.183.187.206 07:11, 2 November 2006 (UTC)

I have already replaced, prior to the comment immediately above, the vast majority of the material at issue, and what I didn't repace is in the above section on this page. So there's no diminution of your work, 69.183.187.206. ... Kenosis 07:26, 2 November 2006 (UTC)

I have taken the liberty of removing the section on personal jurisdiction because it is one of many many aspects of procedural due process. Moreover, it already has its own Wiki page that's already linked here in the section on procedural due process. If we include details about personal jurisdiction, then there's no reason not to have details about every other aspect of procedural due process, which would be impractical. 69.183.187.206 07:48, 2 November 2006 (UTC)

Substantive Due Process

Latest comment: 16 years ago2 comments2 people in discussion

Some sentences were recently inserted that I have difficulty with, and I'm going to rewrite them tomorrow, unless anyone has any big objection. The sentences do not cite any authority, and I think they're inaccurate:

Just what those rights are is not always clear, though life, property, and freedom from imprisonment are some of the better established. Others include the right to vote, the right to travel, and the right to privacy (which itself contains rights to raise, have, and not have children). Some of these rights have long histories or "are deeply rooted" in our society. For example, by the way battery has been defined by courts, common law held for centuries that people have the right to refuse medical treatment. Now, even if states changed the definition of battery to exclude unwanted medical procedures, many courts would find that right under the "liberty" part of the due process clause.

First of all, there obviously is no SDP right to property. The 5th Amendment explicitly says that property can be taken away from a person against his or her will, as long as just compensation is provided. Likewise, freedom from imprisonment is not an SDP right. People are imprisoned all the time, after trial for crimes. Characterizing the right to travel as an SDP right is also inaccurate; this right is explained in detail in the case of Saenz v. Roe, and it is based on other provisions of the Constitution, especially the Privileges and Immunities Clause of Article IV, as well as the Citizenship Clause of the 14th Amendment. As far as the right to vote is concerned, I'm not aware of cases that treat it as an SDP right; instead, if a right to vote is conferred by law, then it becomes a fundamental right for Equal Protection purposes, but not for SDP purposes (as far as I'm aware). I also find it inappropriate to speculate about what "many courts would find." So, I'm thinking about rewriting this paragraph, unless anyone has any big objections.69.183.187.206 08:43, 2 November 2006 (UTC)

Sort of yes, sort-of no. I don't think SDP would allow arbitrary, irrational, or capricious seizures of property, if the aggreived could prove any of those things. On the other hand, such proof is rarely come by, ad also, if it were, it wouldn't matter if it was property or any other liberty interest. I'm not saying you're "wrong," I'm saying law is full of qualifications, so you can't be too hasty. Non Curat Lex (talk) 08:28, 3 February 2008 (UTC)

International Due Process

Latest comment: 17 years ago1 comment1 person in discussion

Yesterday, a section on "International Due Process" was inserted into this Wikipedia article. A section with that title had been deleted in August by someone other than myself. I am skeptical that this section should be in our Wikipedia article about Due Process. The concept is very obscure.

If one does a Google search for "substantive due process" one gets 352,000 hits. For "procedural due process" one gets 423,000 hits. For the combination of "due process" and "incorporation" one gets 1,690,000 hits. But for "international due process" one gets only 980 hits.

Likewise, if one does a Google search in the Google "Scholar" database for "substantive due process" one gets 3400 hits. For "procedural due process" one gets 3300 hits. For the combination of "due process" and "incorporation" one gets 13,700 hits. But for "international due process" one gets only 64 hits.

For now, I am going to move this section of the Wikipedia article so that it is no longer the first section. Also, I would appreciate feedback about whether this section should be deleted.69.183.187.206 22:05, 2 November 2006 (UTC)

Judicial review of substantive due process violations

Latest comment: 16 years ago3 comments3 people in discussion

This page mentions two levels of judicial review. I was reading the Equal protection wiki article and they mention 3 levels. See here: http://en.wikipedia.org/wiki/Equal_Protection_Clause you might want to update this page to make the two consistent. (my first use of wiki, sorry if i did something wrong) 67.170.213.19 02:05, 21 February 2007 (UTC)

No, you didn't do anything wrong. Thanks for the comment.

My understanding was that intermediate scrutiny is primarily for First Amendment cases and also for Equal Protection cases (especially cases related to gender). According to Jeffrey M. Shaman's book Constitutional Interpretation: Illusion and Reality, “The standards of intermediate scrutiny have yet to make an appearance in a due process case.” I don't know for sure if that is correct, but this seems to be why "intermediate scrutiny" is not mentioned now in the Due Process article. Maybe you could look into this some more, and find out for sure?Ferrylodge 02:48, 21 February 2007 (UTC)

Alternative formulae of heightened scrutiny apply in first amendmet cases against state agents, which are, sort-of, substantive due process, of incorporated, enumerated rights. For unenumerated fundamental rights, only two-tiered scrutiny is used. Also, the phrasing of the strict scrutiny elements is a little bit different. Non Curat Lex (talk) 08:29, 3 February 2008 (UTC)

Substantive Due Process Needs Own Page

Latest comment: 15 years ago9 comments5 people in discussion

I think it would be wise to have a page devoted to Substantive Due Process in the United States, including the judicial origins of the doctrine etc. I think it is an issue important enough to merit its own page. Calaf 19:15, 15 April 2007 (UTC)

The article is currently about 5300 words. According to WP:Size, "readers may tire of reading a page much longer than about 6,000 to 10,000 words...." So, I don't think the article is too long at this point. However, if someone wants to add a lot of new material about SDP, then a new page might be a good idea.Ferrylodge 20:38, 15 April 2007 (UTC)

Substantive and Procedural due process (under the U.S. Constitution) should each be their own page. Their relation to one another is a similar name and that they owe their origins to the 14th Amendment. Other than that, they have almost nothing in common. Substantive due process is a guarantee of freedoms, procedural due process relates to court proceedings. It is also important that what is a liberty interest for procedural due process is not necessarily one for substantive due process (such as an injury to reputation).

Procedural due process guarantees are those which dictate what the government must do to deprive you of life, liberty, or property and are very situation specific. For example, the deprivation of a right to attend public school requires far less process that the deprivation of the right to property.

Substantive Due Process, on the other hand, has two main divisions, incorporation (of the Bill of Rights) guanantees and "non-textual" rights such as those at issue in Griswold, Roe, and Lawrence. This can easily be considered the most hottly contested issue at the Supreme Court. The list of the non-textual SDP rights alone is sufficient to fill a page on substantive due process.RyanGentry (talk) 00:35, 3 February 2008 (UTC)

Agree - weakly. "Substantive due process" could use an entire page simply to explain what the hell it means. However, until that content is wikified, I think it's not urgent. Non Curat Lex (talk) 01:04, 3 February 2008 (UTC)

It seems like what RyanGentry is suggesting would best be implemented by a list. See Wikipedia:List. I don't think that inserting a list into this article would be the best way to go, and I'd suggest starting a separate list that can be linked form this article.Ferrylodge (talk) 05:03, 3 February 2008 (UTC)

Not a list per se, and not a list for list's sake. However, in order to under Substantive Due Process, you must understand what the Court has and has not recognized. Would we reject a "list" of rights covered under the 1st Amendment (speech, religion, press, association, assembly)? See the incorporation page for an idea of what I am thinking. What are your thoughts on a separate page?RyanGentry (talk) 07:07, 3 February 2008 (UTC)

If you start a separate page, I would urge that all the material that has been in this article about substantive due process stay in this article. This material can also be copied, and expanded upon, in the new article. I don't think this article should even attempt to list all of the uses to which substantive due process has been put. The new article could address not just federal SDP, but state SDP as well.Ferrylodge (talk) 07:33, 3 February 2008 (UTC)

Substantive due process needs to be split for several reasons. First, as has already been noted, it's completely different from procedural due process. The two are referring to separate processes, and, as the Court has evolved, so has the definition of substantive due process to where it really doesn't talk about "process" as applied to trials and incarceration and instead focuses on legislation vs. rights. Second, it has its own thorny history that really hasn't even been discussed. An article on SDP should mention New State Ice, Lochner and Lee Optical if it's going to be truly informative about how the modern version came about. Also, if you insist on including a criticisms section for SDP, it can be included in the separate page without breaking up the flow of an article devoted simply to due process. I'd suggest a "due process" main page that discusses all the other flavors, with a couple paragraphs and a link for SDP and procedural due process. Phyrkrakr (talk) 21:47, 29 April 2009 (UTC)

Okay, I started a separate page for it. See substantive due process.Ferrylodge (talk) 22:25, 29 April 2009 (UTC)

Supremacy Clause

Latest comment: 17 years ago2 comments2 people in discussion

I've just removed the following language from the end of the History prior to the Bill of Rights section: "However, when the U.S. Constitution took effect in 1789, it did contain a Supremacy Clause, which specified that the Constitution itself, and federal statutes enacted pursuant to the Constitution, would be the supreme "law of the land"." Since the 5th Amendment was _not_ applied to state action until "incorporated" under the 14th Amendment, this sentence, while true, has nothing to do with the history of Due Process. Fitzaubrey 04:16, 22 April 2007 (UTC)

Hi. I've reinserted the deleted material, with some additional explanation: "However, when the U.S. Constitution took effect in 1789, it did contain a Supremacy Clause, which specified that the Constitution itself, and federal statutes enacted pursuant to the Constitution, would be the supreme 'law of the land'. As mentioned, in the early United States, the terms law of the land and due process were used somewhat interchangeably." This supports the view of some jurists (e.g. Hugo Black) as to what the framers meant by due process. As quoted in the article, Black said that the Due Process Clause requires only "that our Government must proceed according to the 'law of the land'--that is, according to written constitutional and statutory provisions." In re Winship, 397 U. S. 358, 382(1970) (Black, J., dissenting).Ferrylodge 04:50, 22 April 2007 (UTC)

Incorporation Cleanup

Latest comment: 17 years ago8 comments2 people in discussion

I cut down the incorporation section significantly, deleting much of the information about the alternative theory of incorporation via the Privileges or Immunities Clause as being more appropriate to an article on that clause. The fact that incorporation has proceeded via substantive due process is not open to reasonable question, and therefore theories about more appropriate textual sources can be mentioned here, but do not warrant in-depth argumentation in this context. I deleted the reference to procedural due process. I can see why the error was made--many of the provisions of the Bill of Rights are procedural protections. But the incorporation of these specific procedural protections against the states has proceeded by means of substantive due process. Procedural due process is another matter entirely, adding certain protections to the specific rights protected by the Fifth and Sixth Amendments. Finally, I deleted the following paragraph which, while somewhat opaque, appears to be to rest on a seriously mistaken conception of what incorporation of the Bill of Rights in the context of constitutional law is:

"When the Due Process Clause of the Fifth Amendment was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were proposed in separate amendments. As James Madison put it, those rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross."^[1] Thus, for example, the states were allowed to reject the Sixth Amendment while ratifying all of the other amendments, and in that case the rights in the Sixth Amendment would not have been incorporated into the Constitution. Roger Sherman explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution."^[2] The doctrine of incorporating the content of other amendments into the Due Process Clause was thus an innovation, when it began in 1925, and it remains controversial today."

If anyone can explain to me what all this has to do with incorporation as such, I suppose it can go back in. Incorporation took place in a context of all the amendments that were ratified as being in the Constitution already, so it was not a matter of whether the Sixth Amendment, for example, would be law at all, but rather whether it would be law as applied to the states. Moreover, at the time of the ratification of the original Bill of Rights, the amendments were understood (and indeed, were expressly limited) to apply only to the federal government. It's difficult for me to understand what that might have to do with the fact that states were allowed to pick and choose among the amendments proposed in 1789. SS451 10:21, 13 May 2007 (UTC)

I have edited the incorporation section to make clear that procedural due process has been used to incorporate procedural rights, and substantive due process has been used to incorpoarte substantive rights. This seems rather obvious, but since a different explanation has recently been inserted, I have added a footnote.Ferrylodge 16:13, 13 May 2007 (UTC)

This is incorrect. Substantive due process protects the specific substantive procedural rights enumerated in the Fifth and Sixth Amendments. Procedural due process undertakes a general "fundamental fairness" inquiry that is informed by the values underlying those amendments, but which, taken by itself, may protect both less and more than the specific guarantees of the Fifth and Sixth Amendments. Procedural due process has been enforced against the states since the Fourteenth Amendment was ratified, but it was not until the 1960s, about a century later, that the substantive procedural rights of the Fifth and Sixth Amendments were held to bind the states. The only textual basis of the incorporation of the Bill of Rights in constitutional law is the doctrine of substantive due process. SS451 04:49, 14 May 2007 (UTC)

I have also considerably shortened the Amar material, and reinserted it (also see discussion above). Amar is offering an explanation of why the DP Clause was inserted into the 14th Amendment, and this seems very relevant to this article. Certainly, it would be no more relevant in the article about the Privileges or Immunities Clause.Ferrylodge 16:48, 13 May 2007 (UTC)

Amar is offering an explanation of why the Due Process Clause was inserted into the Fourteenth Amendment on the theory that the Privileges or Immunities Clause is the "correct" textual basis for incorporation. If one rejects his premise, as the Supreme Court has since 1873, then his explanation is unnecessary and irrelevant. The proper place to discuss this defense of the Privileges or Immunities theory of incorporation is the Privileges or Immunities article--the only appropriate treatment of that theory on this page is a very brief one. SS451 04:49, 14 May 2007 (UTC)

Lastly, I have rewritten and reinserted the paragraph which SS451 found "opaque." It now reads as follows:

The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process,^[3] and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter. When the Bill of Rights was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross," as James Madison put it.^[4] Roger Sherman explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution."^[5] Thus, the states were allowed to reject the Sixth Amendment, for example, while ratifying all of the other amendments including the Due Process Clause; in that case, the rights in the Sixth Amendment would not have been incorporated against the federal government. The doctrine of incorporating the content of other amendments into “due process” was thus an innovation, when it began in 1925 with the Gitlow case, and this doctrine remains controversial today.

Hopefully, that clears up any opacity.Ferrylodge 17:28, 13 May 2007 (UTC)

Unfortuantely, it most definitely does not. The problem here is that the context is completely different. By the time incorporation proper began, all of the provisions of what we know as the Bill of Rights had been part of the Constitution for about a century and a quarter. That is, the States had long since assented to those provisions that were most preferred, and the question in 1925 certainly had nothing to do with any State picking or choosing which suggested protections ought to be included at all; the question was merely, given that these protections were in force against the federal government, the Due Process Clause of the Fourteenth Amendment required that they also be enforced against the state governments I guess what I'm trying to stress is that the letters from Sherman and Madison are speaking to a completely different question than incorporation, especially given that the Fourteenth Amendment wasn't even a twinkle in anyone's eye in the late 18th century.

Now, given that you essentially changed everything back to exactly the way it was, I suspect that my changing the page back to the way I had it, with the corrections I had made, will result in you doing the same thing. Revert wars are unproductive, so I'd like to thrash this out here, and then get a consensus version up soon--but also a correct version, which the current section on incorporation is not. SS451 04:49, 14 May 2007 (UTC)

SS451, let's take one issue at a time, okay? You say: "Substantive due process protects the specific substantive procedural rights enumerated in the Fifth and Sixth Amendments." I say this is incorrect. You are mixing up procedural due process and substantive due process, which are separate concepts, generally speaking. Did you look at the supporting footnote that I inserted into the article? The right to counsel, for example, is a procedural right, not a substantive right. Calling it a substantive right is simply incorrect. Please look at the footnote I inserted into the article, and please let me know of any contrary authority that you would like to rely upon. Thanks. Sources available on the internet are much preferred. Are you saying that all enumerated constitutional rights are "substantive"? That's just not correct.

Conduct that violates a substantive constitutional right are actions governmental officials may not take no matter what procedural protections accompany them. See Hudson v. Palmer, 468 U.S. 517 (Stevens joined by Brennan, Marshall, and Blackmun). "Although most of the rights in the Bill of Rights are procedural, the rights in the First Amendment are substantive." See Richard Cortner, The Nationalization of the Bill of Rights: An Overview. For example, Fifth Amendment protection against double jeopardy is a procedural due process right. See The American Democracy by Thomas E. Patterson (McGraw Hill 1996). Justice Douglas, joined by Brennan and Marshall, once wrote that the Supreme Court should not be "concerned with the wisdom of state policies, only with the constitutional barriers to state action. Procedural due process is one of those barriers, as revealed over and over again in our decisions. Some of its requirements are explicit in the Bill of Rights -- a speedy trial, Klopfer v. North Carolina, 386 U.S. 213; a trial by jury, Duncan v. Louisiana, 391 U.S. 145; the right to counsel, Gideon v. Wainwright, 372 U.S. 335; the right to confrontation, Pointer v. Texas, 380 U.S. 400 -- all as made applicable to the States by reason of the Fourteenth Amendment." McGautha v. California, 402 U.S. 183 (Douglas dissenting). You are simply incorrect to assert that these listed procedural rights are protected by substantive due process instead of procedural due process.

In view of all these sources I have painstakingly cited (and you have cited none), do you still want to argue that the following sentence in the present article is incorrect? "The basis for incorporation is substantive due process regarding enumerated substantive rights, and procedural due process regarding enumerated procedural rights." Ferrylodge 04:59, 14 May 2007 (UTC)

Lack of worldwide view

Latest comment: 15 years ago22 comments5 people in discussion

This article espouses due process soley from its incorperation and use in US law: the first four words are "In United States law", the infobox is for a US Constitution article, and 80-85% of the article discusses due process only in the context of its adoption in the US. As the article itself states quite early on, the concept traces its origins to the 1215 Magna Carta, a piece of English legislation, and still has enormous relevance there and in numerous other juristictions throughout the world.

I like this article, it says a lot of useful things to know, but I belive it should either be retitled "Due Process in the United States", or include a far more international focus. As it stands the article gives a dangerous impression that the United States has somehow monopolised the use of due process and it doesn't exist anywhere else in any form worth talking about for more than four lines. —Preceding unsigned comment added by 82.36.125.154 (talk) 00:36, 13 January 2008 (UTC)

I disagree with placing a globalize tag on this article. Many articles don't take a global view, such as Statue of Liberty and Grand Canyon, and that's perfectly appropriate. The "Due Process" clause happens to be part of the US Constitution, and thus it's mainly related to the U.S. Nevertheless, "due process" does have a much smaller role in English law, and an even smaller role in other countries.

The lead of the present article reflects this. The first sentence of the lead mentions both US and English law, and the last sentence of the lead mentions other countries. The first section of the article also contains subsections for the US and England. The last section of the present article is titled "International due process." More material can be placed in that section if it's sufficiently notable. As of now, however, I don't think there's a sufficient amount of stuff in this article to start spinning it out to other new articles.Ferrylodge (talk) 00:49, 13 January 2008 (UTC)

Whoa, a mere 7 minutes passed before someone disagreed so much they ripped off the template and didn't bother to discuss why here. To answer Ferrylodge's edit comment "Many articles don't take a global view, such as Statue of Liberty and Grand Canyon. The "Due Process" clause happens to be part of the US Constitution." - my reason is simple. Unlike the Statue of Liberty or the Grand Canyon, due process does exist outside the United States. It is and has been part of the UK Constitution since the Magna Carta, and has existed in the European Convention on Human Rights, which 47 countries are party to, as Article 6, since 1957. So it is not just yours. This article implies that it is, and that will sadly mean lots of people will think that due process does only exist in the US. —Preceding unsigned comment added by 82.36.125.154 (talk) 00:46, 13 January 2008 (UTC)

That's interesting. Does Article 6 of the European Convention on Human Rights use the words "due process"?Ferrylodge (talk) 00:51, 13 January 2008 (UTC)

(undent)Okay, I'll answer that question. Article 6 of the ECHR does not use the words "due process". Here's the full text:

“

Article 6 – Right to a fair trial1

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence has the following minimum rights: to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; to have adequate time and facilities for the preparation of his defence; to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

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We have to be careful in this article to not project our own views of "due process." If the ECHR does not self-identify as a "due process" provision, then I don't think it's proper for us to identify it as such. The lead paragraph of the present article refers to "the concepts of natural justice and procedural justice used in various other jurisdictions." I think that Article 6 of the ECHR falls more in the category of procedural justice, which is not necessarily synonymous with "due process".Ferrylodge (talk) 00:57, 13 January 2008 (UTC)

The problem is that this article doesn't know what its own purpose is. Is it to explain "due process" in United State law, or "due process" globally? I don't know, and I don't think I see a consensus. The title of this article is "due process," not "due process clause of the 5th Amendment of the U.S. Constitution" or "of the 14th amendment of the U.S. constitution." That suggests that the article is an article about a brooding, omnipresent legal concept - or at least about the big picture of "due process" rights. The big picture of due process rights is that individuals can hold governments accountable in court as a way to protect their rights, other than through the political process or civil war. Accountable government and citizen suits are not uniquely an American concept.

However, "due process" is a uniquely anglo american way of stating it. And as a term of art, it is really uniquely American. Only in this country do we rely on "due process" rights to do so much work in enabling those citizen suits. Only in this country do lawyers hold those words so dear. Articles on specific provisions of U.S. law (the article ont he 5th amendment and 14th amendments) link here. A search for cases that are decided on "due process of law" through reporters worldwide will lead you only back to U.S. reporters. So even though this article by its title purports to be global, not local, it is predominanlty an article about a subject that has substantial or notable meaning only in U.S. law. So to make this article "suitably global" I think it is necessary to (a) differentiate "due process of law" as a freestanding legal concept from "due process of law" as a specific constitutional gauruntee in america (as I have done); (b) devote a subsection to surveying the analogous or comparable statutes in other civilized countries (as I am not able to do). Non Curat Lex (talk) 00:59, 1 April 2008 (UTC)

Please keep in mind that we have separate articles on natural justice and procedural justice which everyone acknowledges are international, global concepts. Those articles would become redundant if we cover the same material here in this Due Process article. Regarding whether "lawyers hold those words so dear", it varies. Roe v. Wade was built on the Due Process Clause. So was Lochner v. New York which helped pave the way for the Great Depression. And, the Supreme Court struck down the Missouri Compromise in Dred Scott v. Sandford, on no other grounds than the Due Process Clause. Maybe it would help clarify things if we rename this article "Due process as a term of Anglo-American law."Ferrylodge (talk) 01:09, 1 April 2008 (UTC)

Ferrylodge: referring to "due process" as dear was a bit cheeky of me; I hardly implying there was a critical consensus on its application. But love it or leave it, U.S. law is replete with references to due process, and that is not the case everywhere else. I think it's okay to leave the article named the way it is, as long as there is adequate explanation. Non Curat Lex (talk) 06:15, 1 April 2008 (UTC)

This article focuses almost entirely upon the U.S. The only attempt to look at this process in other countries only deals with the history of Due Process in England before the U.S. became a separate country.The Onion 00:14, 25 February 2009 (UTC)

The phrase "due process of law" (or literal translations thereof) simply is not used in a whole lot of countries. Feel free to expand the section in this article titled "International due process" if you know of instances where the literal translation is used. As mentioned above, many articles don't take a global view, such as Statue of Liberty and Grand Canyon, and that's perfectly appropriate. Please keep in mind that we have separate articles on natural justice and procedural justice which everyone acknowledges are international, global concepts. Those articles would become redundant if we cover the same material here in this Due Process article. Thx.Ferrylodge (talk) 00:20, 25 February 2009 (UTC)

This article should at least be titled as Due Process (U.S.). The Onion 00:25, 25 February 2009 (UTC) —Preceding unsigned comment added by Pisharov (talk • contribs)

It has a fairly large section on "due process" in England.[3]Ferrylodge (talk) 00:28, 25 February 2009 (UTC)

I concur with Ferrylodge that the due process article is fine as is, because this is primarily a U.S. legal concept with English roots which are adequately explained. No other jurisdiction uses the concept or has developed it to the extent that the U.S. has, in the form of tens of thousands of reported decisions at both the federal and state levels. The editors who are suggesting otherwise are clearly not lawyers and are abysmally ignorant of U.S. law as well as the history of the common law in general. Attempting to foist a worldwide view tag on this article is as ignorant and stupid as putting a worldwide view tag on the articles concerning the Statute of Liberty or New York City. The topic matter by its very nature is geographically specific. --Coolcaesar (talk) 17:29, 25 February 2009 (UTC)

All told, this article should be named "Due Process Clause (United States)". Foofighter20x (talk) 22:54, 25 February 2009 (UTC)

But it has a fairly large section on "due process" in England.[4] I think the problem has been taken care of by Pisharov's wise edit here.Ferrylodge (talk) 22:59, 25 February 2009 (UTC)

I disagree. The section on due process in England only covers up to the time of the American Revolution, and focuses on American law thereafter. As such, the section on England is really only one of pre-Revolutionary influence of English law on post-Revolution American law. Foofighter20x (talk) 23:11, 25 February 2009 (UTC)

But can you actually point to any jurisdiction outside the United States that currently uses the concept of due process, under that name? Or as a judge would say: Do you have authority for your position, counsel? --Coolcaesar (talk) 04:21, 26 February 2009 (UTC)

1. This isn't a courtroom. 2. I don't have to offer a cite to support my assertion above; res ipsa loquitur. Foofighter20x (talk) 06:17, 26 February 2009 (UTC)

You've just conceded that your position has no logical basis. The status quo is fine. Disambiguation is unnecessary when a concept exists primarily only in one form. We already have articles covering the related concepts used in other countries like fundamental justice, natural justice, and procedural justice, which are significantly different from the American notion of due process. Try reading those first before making a fool of yourself.

Here's some free legal advice: It's generally unwise to debate the ontology of concepts you don't know very much about. When you pass the bar exam, then come back and we'll see if you can still make that argument. --Coolcaesar (talk) 07:19, 26 February 2009 (UTC)

Let me offer you some advice as a person: Don't be a dick.

Also, I'm not making any claim about any outside authority. I'm making a descriptive assertion about the article itself. Hold my statement against the article and tell me if I'm wrong (here's a hint: I'm not). Where in the article are any mentions of how due process has developed, and to what extent, in the UK, Australia, New Zealand, or any other country in the Commonwealth of Nations, after the American Revolution/establishment of the U.S. Constitution? Answer that for me. Foofighter20x (talk) 16:52, 26 February 2009 (UTC)

That's as crazy a non sequitur as asking why doesn't the article of the Constitution of the Roman Republic contain any information on the development of the Roman Constitution on the North American continent after 1945! There is no need for the discussion you posit in this article because Commonwealth law doesn't have due process, it has fundamental justice, natural justice, procedural justice, etc. That is ALREADY adequately explained in the article. Your position is nearly as nuts as asking why there's no tort law in civil law countries---the answer, of course, is that they have delict instead, which has some superficial similarities to tort but also has many fundamental differences. My point is that some legal concepts are tightly bound to particular legal systems, languages, locations, and timeframes. Indeed, that's what comparative international law and comparative sociology of law are all about. Sounds like you need to do some reading about the Constitution of the United Kingdom and the Canadian Charter of Rights and Freedoms. --Coolcaesar (talk) 07:41, 27 February 2009 (UTC)

(unindent) You still haven't answered the question. The phrase "due process of law" appeared in England. Where did it go? I can follow its development until ca. 1776-1787, but from there, in this article, I can go no further. What did England do with it? You talk about these other forms of justice as they exist now, but the article makes no mention of how English common law went from due process to these other ideas. When was the transition? Why did it happen; and how? Did it happen in the UK and disseminate outward, or was the idea transmitted and later speciated into the several types there are now? Either way: HOW DID IT HAPPEN? The article fails to explain that. Thus, proclamations about exactly how adequate the article is appears to be more like your own opinion than a reasonable assessment. Foofighter20x (talk) 00:51, 28 February 2009 (UTC)

Well. I'll concede that we've narrowed down the point in dispute to a very interesting question---why did due process of law drop out of English law after 1800 and why was it replaced by natural justice? I spent an hour investigating that question on Google Books and on some public databases to which I have remote access through the county public library. There are very few sources that are specifically directed to that question. And all of them are under copyright and available only in snippet view on Google Books, meaning that I would have to travel to the law library of one of the larger law schools to actually read those books and find the answer.

I'm extremely busy this month and this is a low research priority for me (see the mess over at Talk:Lawyer to get an idea of what's my biggest Wikipedia priority right now), so this issue will have to stay on hold until the next time I have some spare time. Of course, since you care so much about this question, why don't YOU investigate it?

As far as I can tell, the reason why U.S. lawyers generally haven't investigated this question is because U.S. courts look at English law only prior to the ratification of the Constitution. The Revolutionary War, by creating a new country, indicated the intent of the Founding Fathers to sever themselves from the power of the King, his Parliament, and his courts (if they had lost the war, they would have been executed for treason). Therefore, today all U.S. lawyers care about is figuring out what the Founding Fathers meant at the time the Constitution was ratified in light of the English legal concepts that existed at that time, not after. That's why U.S. Supreme Court decisions often trace the history of English law up to 1789 in painstaking detail, but rarely discuss what happened afterward.

And English lawyers don't care about solving this obscure question because they're used to operating in terms of "natural justice," which from the snippets I've seen so far apparently first developed in reported decisions as early as the 1860s but didn't really flourish in UK law until the 1964 decision of Ridge v. Baldwin. To UK lawyers, "due process" is an exotic American concept that shows up mostly in international human rights cases.

I did find an important hint in a book by Charles R. Epp, titled The Rights Revolution (Chicago: University of Chicago Press, 1998) (available on Google Books with limited preview). At page 116, he discusses the "long sleep of judicial review" in Britain. Under the long-prevailing view of the British constitution as put forth by scholars by A.V. Dicey in the 19th and early 20th centuries, the rule was that parliamentary sovereignty was supreme. If the courts or the government agencies were unfair, well, the people speaking through their Members of Parliament could simply pass a statute implementing new procedural protections. Of course, the problem with that concept was that in reality, Parliament (like legislatures everywhere) was controlled by the wealthy and the powerful, so reforms were slow and hapless ordinary people got crushed by the system in the meantime. But the courts didn't care. That's why judicial review took so long to develop in Britain, because the courts relied upon parliamentary sovereignty to blind themselves to the harsh realities of their own judicial process as well as the arbitrary actions of government officials and legislators. In contrast, due process was put in the Constitution by Americans to protect themselves from their own government.

Anyway, I'll get back to this issue in a few weeks. But don't move the article, or I will countermand immediately. --Coolcaesar (talk) 07:12, 28 February 2009 (UTC)

??? I wasn't going to move; never intended to do so. The article name provided above was just a suggestion based on the content of the article, as my questions above illustrated. Any who, I appreciate the interim answers you have, and look forward to seeing what you do with the article when you get to the bottom of it all. Also, I hope my questions did a better job illuminating my reasons for saying the article is overly Amero-centric; it appears they did the trick in conveying the point I was trying to make. Cheers! Foofighter20x (talk) 07:30, 28 February 2009 (UTC)

US

Latest comment: 16 years ago1 comment1 person in discussion

"This article is part of the series: United States Constitution" What? Why? --212.247.27.105 (talk) 21:03, 31 March 2008 (UTC)

Economic due process (doctrine)

Latest comment: 15 years ago2 comments2 people in discussion

In the Felix Frankfurter article it reads that Oliver Wendell Holmes, Jr. "had taken a firm stand during his tenure on the bench against the doctrine of 'economic due process'". Should the present article perhaps explain what this doctrine entails? __meco (talk) 16:23, 28 November 2008 (UTC)

I think that subject is covered pretty well in the article, but the specific term "economic due process" was not used. So, I inserted it.Ferrylodge (talk) 17:34, 28 November 2008 (UTC)

New section on "work arounds"

Latest comment: 15 years ago2 comments2 people in discussion

The new section on California's "common law right of procedural fairness" is interesting, but not really appropriate for this particular article. The lead paragraph in this article wikilinks to articles on procedural justice and natural justice, whereas this article has to be confined to "due process". If we don't confine this article to "due process" then it will get incredibly huge and unfocussed. May I suggest moving the material in question to one of the other articles I just described?

In California, common law must not be “repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State.” See California CIVIL CODE SECTION 22-22.2. Thus, the California Legislature can modify any rule that a judge formulates based on the "common law right of procedural fairness." Therefore, that particular right is not a constitutional right in California, and even if it were there is no indication that it would be a subset of "due process."

Here's a list of Wikipedia articles about California law. Maybe the info about a "common law right of procedural fairness" could go in one of them?Ferrylodge (talk) 02:21, 14 December 2008 (UTC)

So noted; you have adequately rebutted my point by distinguishing between common law v. constitutional principles. I will start a new article on fair procedure eventually and relocate the content there. --Coolcaesar (talk) 17:52, 14 December 2008 (UTC)

Split

Latest comment: 15 years ago6 comments4 people in discussion

It'd be more encyclopedic to summarize SDP in this article, but to detail its evolution in its own article. The criteria says when an article gets over 60kb, it most likely ought to be split. We aren't there yet, but we are certainly pushing it at 55kb. Also we could then justify having much more detail over the rise and demise of economic SDP, and the current battle over SDP in other areas of the law, such as Roe, etc. Foofighter20x (talk) 21:34, 1 March 2009 (UTC)

Wikipedia has a separate article about Roe v. Wade and about each of the other major SDP cases too, and we link to them from here. So, I'm kind of leery about the split proposal, since each of those other articles can already say how SDP impacted each case. And like you said, we're only at 55kb here.

A further problem that I see with the proposed split is that SDP is only a special case of the doctrine of unenumerated rights (both procedural and substantive). Some of the opponents of SDP have opposed it not merely because they think that “due process” is a purely procedural concept, but rather because (they say) “due process” does not protect any unenumerated rights at all. The latter position was taken by Justice Hugo Black, and Justice Thomas has discussed it as well; it was a very common doctrine prior to the twentieth century.

So, instead of creating a sub-article for SDP, it might be more appropriate to create a sub-article for unenumerated due process rights, and then a sub-sub-article for SDP. But at 55k, I don’t think we’re there yet.Ferrylodge (talk) 21:55, 1 March 2009 (UTC)

I strongly favor the split. The reason is because SDP's important role in American law, especially incorporation. What I mean is that without SDP, our system would be radically different. Further, the reasoning behind SDP is so far removed from the original meaning, it deserves it's own section. Piratejosh85 (talk) 18:40, 18 April 2009 (UTC)

Josh, please note that SDP does have its own section in this article.[5] Until the section gets bigger, I don't see a need for splitting off to a new article. Also, incorporation involves the use of both procedural and substantive due process. For example, incorporation of the right to counsel is a procedural rather than substantive right, so it couldn't be covered in the split-off article.Ferrylodge (talk) 23:24, 18 April 2009 (UTC)

I favor the split as well. SDP has a very prominent presence in Constitutional Law, especially from a learning standpoint. I think the current article would have added clarity if a summary of SDP was given and a link to a more expansive SDP article was created. -- —Preceding unsigned comment added by IraKnight (talk • contribs) 21:13, 18 April 2009 (UTC)

Ira, please note that the present article does provide a summary of SDP.[6] Until the section gets bigger, I don't see a need for splitting off to a new article. Anyway, if we do split off to a new article, shouldn't we split off to Unenumerated Due Process Rights, and then SDP could eventually be split off from that?Ferrylodge (talk) 23:24, 18 April 2009 (UTC)

Confirmed why due process of law eventually died out in England

Latest comment: 15 years ago6 comments2 people in discussion

Just got a couple of great sources. The rise of parliamentary supremacy and the lack of a single written constitution killed it. The idea of something like "due process" that could be used to constrain the procedures of the judiciary or any branch of government was widely seen as undemocratic and violating parliamentary supremacy. Will add cites within a day or two. --Coolcaesar (talk) 04:12, 15 March 2009 (UTC)

Just countermanded some incompetent edits by Ferrylodge, who clearly hasn't read the underlying sources. If there's any bias, it's in the underlying sources. Go find other sources if you disagree, but I've researched this issue already and it'll probably be hard to find any. The clear consensus among constitutional scholars on both sides of the Atlantic is that American law has always shown far more concern for protecting individual human rights from infringement from the sovereign than English law, because the Constitution was baked in the crucible of a revolution against a cruel and oppressive tyrant (the Loyalists who actually liked bills of attainder, corruption of blood, and the like fled to Canada). Large components of due process under U.S. law have no English equivalent under any name, which to American lawyers represents an appalling deprivation of human rights (for example, the severe constraints on freedom of speech in England). --Coolcaesar (talk) 03:42, 23 March 2009 (UTC)

Coolcaesar, a lot of your recent edits are fine, in my opinion. However, I disagree with some of them, and therefore made some further edits, which you have now reverted. Let's discuss things here at the talk-page, instead of edit warring, okay? If we cannot agree, then we may have to go back to the version prior to the material you've recently added.

For example, it's not in keeping with WP:NPOV for you to write in this article: "Unfortunately, the scattered references to 'due process of law' in English law never ripened into a coherent body of law capable of truly limiting the power of the government." Many people think it's wonderful that due process does not limit the British parliament, because they think it gives too much power to the judiciary. We cannot take a position one way or the other here in this Wikipedia article.

Likewise, we cannot disparage people who think judicial review is unwise. Your statement that "Lord Campbell was able to haughtily dismiss judicial review" is disparaging, and that's not consistent with WP:NPOV.Ferrylodge (talk) 03:44, 23 March 2009 (UTC)

But do you have sources for your POV? Any POV in my edits flows naturally from the underlying sources. It sounds like you're totally unaware that apart from the occasional innovation like Magna Carta, English law had practically no concern for individual human rights prior to the signing of the European Convention on Human Rights in 1950. The result was legal fictions like virtual representation which resulted in the famous slogan no taxation without representation, as well as creative punishments like penal transportation. Whether you like it or not, this is an established historical fact (please see the discussion with Foofighter200x above for the debate which led me to research this issue). Your edits tried to whitewash the disdain with which the English judiciary traditionally regarded notions now assembled in contemporary law under the rubric of human rights.

That is, you need to be able to distinguish between the historical positions taken in the past versus the debate over judicial review in the present.

What your edits were doing is almost as silly as trying to characterize the Nazi regime as simply a misguided attempt to stabilize the German economy or characterizing the South African apartheid regime as merely protecting South Africa from the specter of Communist imperialism. While both positions would be partially true in a very narrow hypertechnical sense, most people would agree that such characterizations leave out a LOT of important details. --Coolcaesar (talk) 04:22, 24 March 2009 (UTC)

First, I think it would be helpful to steer clear of Godwin's law. Additionally, I would urge you to quote a particular edit of mine with which you disagree, so we can talk specifically about it. That's what I tried to do above with regard to your edits; just talking in generalities is usually not helpful without also looking at specifics. I don't think my edits whitewashed anything.

Regarding human rights in Great Britain prior to the American Revolution, there were many many statutory rights in Britain, but no constitutional rights. Are you acknowledging the statutory rights?Ferrylodge (talk) 15:26, 24 March 2009 (UTC)

I don't have the time to address in detail this right now as I am fighting multiple incompetent editors on my favorite article, Lawyer, who are pushing POV garbage and OR in violation of numerous Wikipedia policies and guidelines. I will state that I think you are incorrect about the statutory rights, which were few in number and severely limited both de jure and de facto to a very small portion of the English population. --Coolcaesar (talk) 19:42, 5 April 2009 (UTC)

Globalize tag

Latest comment: 15 years ago13 comments3 people in discussion

I scanned the ridiculously long arguments above, and I'm adding the globalize tag. Due process is not a term or concept exclusive or even central to the United States. As a matter of history, due process of law existed in the common law, making it immediately a global - if anglo-centric phenomena. In addition. I'll confess to not knowing a great deal about the due process requirements of other nations, but the concept is not unique to the United states. What IS unique to the united states is substantive due process, and the centrality of the term "due process." The article can and will be rewritten accordingly.--Tznkai (talk) 23:57, 16 September 2009 (UTC)

Due proccess and Australia , a Canadian paper referring to a Scottish official discussing following due proccess for example.--Tznkai (talk) 23:59, 16 September 2009 (UTC)

You failed to actually read the article or the sources cited, notably Orth's book, which examines the history of due process in detail. Due process is overwhelmingly a U.S. phenomenon that was exported to the rest of the world through the powerful American media. Due process in English law existed only in the sense of random dicta and eventually died out. Due process in American law, in contrast, evolved into a rich and complex concept through thousands of judicial decisions over the past two centuries and is at the core of modern American constitutional law. --Coolcaesar (talk) 16:32, 27 September 2009 (UTC)

Which suggests that due process, like television is now an international phenomenon. Due process specifically, had its roots in common law, fundamentally Anglo-Saxon in origin, and exported world wide because of British colonization. The term being re-exported reinforces my point that the top tier article needs to address due process world wide because it is right now, a term and concept not exclusive to the United States.--Tznkai (talk) 16:36, 27 September 2009 (UTC)

None of the Australian sources appear to be developing due process as an actual domestic legal doctrine in the sense that U.S. cases do, but merely referring to it in passing as a point of comparison while discussing domestic law. Same thing with that Canadian source. Also, neither the Australian nor the Canadian constitutions contain any reference to due process of law. Same with the European Convention on Human Rights.

What you're proposing to do is original research. You can't extrapolate on your own from a few scattered sources and make a harebrained and probably untrue claim that due process has actually taken root in other countries outside of the U.S. You need a published verifiable source that actually makes that claim for you.

It sounds like you're not a lawyer. Lawyers and law professors discuss legal ideas from other countries all the time, partially for fun, and partially because comparative law helps one see the strengths and weaknesses of one's domestic legal system. Plus the Socratic method encourages thinking in terms of hypotheticals ("What if we change this fact, how does the scenario play out then?"). But intellectual hypotheticals aren't the law. It's ultimately up to the courts or legislatures to adopt those ideas and create an indigenous implementation. For example, the idea of the contract of adhesion was first published in French legal literature in 1901, and discussed in an article in the Harvard Law Review in 1919, but didn't really become firmly rooted in American jurisprudence until the 1950s and 1960s. Now it's so firmly established in the U.S. that most American lawyers don't realize we borrowed the idea from the French!

Anyway, I think the current article is fine as is. It correctly explains that due process is today primarily a U.S. doctrine with English roots, and that in its country of birth, it is a mere historical curiosity buried in some old statutes and cases.--Coolcaesar (talk) 02:35, 2 October 2009 (UTC)

I don't know that you're a lawyer, and you don't know that I'm not. We leave our credentials at the door, and what law professors do or do not due the questionably named Socratic method has very little to do with the topic at hand. If your suggestion is that the term "due process" is mostly used in the U.S. sure. If your suggestion is that the primary development of due process is in the U.S, sure, whatever, I'm sure there is a source to show that. I do not buy the notion that the focus of "due process" is so fundamentally an American phenomena that this article doesn't need to mention its development and execution in other countries. I highly doubt that the "process that (one) is due" is an example of American exceptionalism - but I'm sure you have source to back up that notion. It is the contention that due process is exclusively American that needs to be sourced, not the other way around. Which claim is facially more extraordinary?--Tznkai (talk) 02:44, 2 October 2009 (UTC)

A further thought, from the International Covenant on Civil and Political rights "1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." (Article 9). That sounds like a notion of due process to me and I'm fairly certain I'll find a source in short order when I'm not buried on other things. Reliable sources are certainly required for article itself thus, it is here in conversation, not there, in the article.--Tznkai (talk) 02:55, 2 October 2009 (UTC)

Recall, all I am submitting right now is that the term has significance outside of the U.S: Use of the term by the Canadian DoJ. The Canadian Constitution says " Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Now, what do you think the chances are that I won't find a reliable source linking that to "due process?"--Tznkai (talk) 03:04, 2 October 2009 (UTC)

PLEASE READ. THEN THINK. The texts you quote from DO NOT USE THE WORDS "DUE PROCESS." Please read up on close reading and New Criticism, which are standard in freshman English composition courses at top-tier universities in the U.S.

You are making a jump of logic (or a leap of faith, to be more accurate) by claiming that OTHER legal concepts like "fundamental justice" are equivalent to due process, with NO AUTHORITY to bridge the gap. That's original research. In contrast, the words "DUE PROCESS" are right there in the Fifth and Fourteenth Amendments to the U.S. Constitution, as well as numerous state constitutions. For example, article 1, section 7 of the California Constitution and article 1, section 6 of the New York State Constitution.

You also have a larger gap in your logic, which is that you don't realize that many facially similar legal terms are in fact not similar once one penetrates to their actual substance. See the false friend problem in linguistics. For example, California has a concept called "fair procedure" (I wrote the Wikipedia article) which sounds a lot like, but is not the same as due process. It is available only in a limited range of odd situations.

To make the connection you're trying to assert, you'd have to find a source that not only uses "due process" as a hypothetical discussion point, but also asserts something such as: "just like in the U.S., our domestic conception of due process mandates a notice, hearing, and a neutral judge whenever the state attempts to deprive individuals of life, liberty, or property," with citations to particular cases actually establishing that holding. Or something that's very close, such as something saying "our conception of due process, like in the United States, mandates a notice and hearing, but our requirement of a neutral judge is not so strict as to always require recusal." Right now, all I see on Google are news articles and a few foreign law review articles that throw around the term "due process" in passing and don't really analyze it as a domestic legal concept. It's like how I can publish an article in the U.S. discussing the concept of delict in French civil law, but my article alone would not be able to be cited as a source for the assertion that "delict" actually exists in American common law. Only if an American court were to cite my article and say, "Hey! That French concept of delict is really cool! We hereby adopt it as the law of our state and disapprove of the common law of tort!"---then you have a situation where delict is actually transferred from one legal system to another. Got it? --Coolcaesar (talk) 03:05, 3 October 2009 (UTC)

Due process as a term, is used in multiple English speaking countries around the globe. This does not seem to be under serious dispute. Articles on Wikipedia need to be comprehensive, giving due weight to all relevant view points - not just American ones. I have shown at least source that uses due process as a native concept - not as a reference to American law or society. Thus, it is established quite simply and clearly that due process as a concept and a term has a meaning that is not restricted to the United States, thus the article must address the use outside of the United States. Additionally, on its face, the assertion that due process only has relevant meaning in the United States is the statement that needs to be supported by reliable and verifiable sources. Finally, if we are going to continue this discussion, you are going to treat me and every other editor on his project with respect.--Tznkai (talk) 03:20, 3 October 2009 (UTC)

Importation of due process in India. Not sure if its an R.S yet, but should be adequate proof I'm not talking out of my ass, so to speak.---Tznkai (talk) 03:42, 3 October 2009 (UTC)

First of all, my tone was already respectful. Second, now we're getting somewhere. I've pulled and read the case cited by that book, Maneka Gandhi v. Union of India (1978), and I concede that it's exactly what I'm asking for---a foreign common law court expressly importing the term "due process" into domestic law. If you had simply cited that in the first place, we could have avoided a lot of unnecessary discussion.

Anyway, I'm not going to challenge the proposed disambiguation any further at this time. Good luck writing the disambiguation page. Of course, judging from the mess with numerous other articles on Wikipedia, there's an 80% probability that I'll come back to this article in two years and it'll consist of a vague two-paragraph summary followed by a long list of red links and blue links to Due process (United Kingdom) and Due process (United States). I sincerely hope you actually follow through promptly on your proposal so that those articles aren't red links. I have seen too many disambiguations that turned out poorly and were merged back together two or three years later. --Coolcaesar (talk) 02:34, 5 October 2009 (UTC)

Eh, I don't think there should be a disambig page, and I agree with Coolcaesar that we don't need a mess of more articles. Tznkai should get consensus before that move. The US section just needs to be edited - it has a lot of wordiness and redundancy. The rest of the world can be summarized neatly in a section with our sources thus far, since we have very little and likely will have little for the foreseeable future. Also, I don't think Coolcaesar is exactly cool in this argument (please take two deep breaths before responding - this is a standard technique of top-notch lawyers who do not necessarily graduate from top schools). I'm quite certain that other countries have the due process idea, even if they don't use the word due process. However, until we find articles directly discussing the due process concept and its existence in other countries, we can't really write about it. A quick search turned up a chapter of a book on criminal law entitled "The Great Due Process Revolution: Adversarality in Europe and Latin America", which appears relevant, and states that Germany was the first country to develop due process. There's also some possibly irrelevant World Bank stuff, a vague word snapshot of "due process guarantees worldwide", an article by Paul Hyam on due process in European law, and an article on due process in socialism... I'm sure there's more. Might want to search the Comparative Law journals. This article has the particularly apt statement that "many international human rights texts contain due process rights" and this 2008 article might also have good info... II | (t - c) 07:52, 10 October 2009 (UTC)

Lead sentences are a mess

Latest comment: 14 years ago1 comment1 person in discussion

The lead sentences have clearly been vandalized. The article begins with TWO incoherent run-on sentences, which would guarantee an instant C in freshman composition at most American universities and an F in first-year Lawyering Skills at most American law schools. It is really sad that an article on such an important subject begins in such a slipshod fashion.

Last time I checked, this is not Run-on-pedia. I tried to clean up the lead and Tznkai promptly reverted my edits. Please explain. --Coolcaesar (talk) 06:00, 21 November 2009 (UTC)

Confusing quote in Unenumerated due process rights

Latest comment: 14 years ago1 comment1 person in discussion

The first paragraph under that heading introduces a 2004 quote by Justice Thomas, but then provides what is substantially a 1970 quote by Justice Black. I understand that Justice Thomas in 2004 quoted Justice Black... but why not just provide the original quote? --71.89.92.18 (talk) 09:55, 8 May 2010 (UTC)

Re:Globalize template

Latest comment: 14 years ago2 comments2 people in discussion

I wonder if whoever added this template realizes that the reason there is so much content on due process in the US is because these literal words are used in the US Constitution. If other countries use these same words (or their translation) and are modeled on the US constitution perhaps it makes sense to include that in this article. However, I believe it would constitute an even more serious crime of ethnocentrism to shoehorn the discussion of anything that sounds like due process in other jurisdictions into this article. Savidan 00:28, 25 July 2010 (UTC)

I concur with your incisive and accurate analysis, which accords with the views I have earlier expressed above. --Coolcaesar (talk) 03:53, 25 July 2010 (UTC)

Due Process in School

Latest comment: 13 years ago3 comments2 people in discussion

An anonymous user posted up a three paragraph attack on US public schools that was biased and unsubstantiated, so I deleted it. If anyone thinks differently, feel free to un-edit my edit but the paragraphs written were terrible.Topher (talk) 00:21, 24 October 2010 (UTC)

It's back. I'll get rid of it again.--Coolcaesar (talk) 18:50, 14 November 2010 (UTC)

Done. It's gone. Plus it was original research and biased in violation of policies NOR and NPOV. --Coolcaesar (talk) 18:52, 14 November 2010 (UTC)

^ Letter from James Madison to Alexander White (Aug. 24, 1789)
^ Letter from Roger Sherman to Simeon Baldwin (Aug. 22, 1789)
^ Hurtado v. California, 110 U.S. 516 (1884): "when the same phrase was employed ... it was used in the same sense and with no greater extent."
^ Letter from James Madison to Alexander White (Aug. 24, 1789)
^ Letter from Roger Sherman to Simeon Baldwin (Aug. 22, 1789).

[1] Letter from James Madison to Alexander White (Aug. 24, 1789)

[2] Letter from Roger Sherman to Simeon Baldwin (Aug. 22, 1789)

[3] Hurtado v. California, 110 U.S. 516 (1884): "when the same phrase was employed ... it was used in the same sense and with no greater extent."

[4] Letter from James Madison to Alexander White (Aug. 24, 1789)

[5] Letter from Roger Sherman to Simeon Baldwin (Aug. 22, 1789).

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