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Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

No matter how guilty the perpetrator, no matter how hideous the act, if the process by which we Americans convict one of our own people seems to be unfair, the result is not justice. It is merely a conviction.

And because we can’t get something for nothing, a mere conviction – a conviction founded in fact but not founded in fairness – makes us pay a price.

The price we pay is cynicism about our judges. The price we pay is our increasing belief that there is one brand of justice for the rich and another for the poor. The price we pay, ultimately, is the corrosion of our core values as a people.

The lesson is hardly new nor remarkable to America. The Lord Chief Justice of England spoke for us all when he said:

“Justice should not only be done but should manifestly and undoubtedly be seen to be done.”

Justice Douglas, in a decision that saved the life of John Brady, said much the same thing, in language which has never been repudiated, even by the present Supreme Court:

Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.1

Put less eloquently: it isn’t good enough to convict the son of a bitch. You have to convict the son of a bitch in a way that we all recognize as fair.

As a people, we Americans have always understood the importance of a judicial system that is not just fair but seen to be fair.

That concern was alive in 1791 when we were a tiny nation of three million people, and it is alive today two hundred years later when we have grown to a massive society of 250,000,000.

In the hot, dusty summer of 1789, James Madison embedded this sense of fairness in our national consciousness.

In fifteen simple words, Madison drafted and introduced the due process clause of our National Constitution: “No person shall… be deprived of life, liberty or property without due process of law…”

Madison of course did not invent the phrase “due process of law.” Like any good lawyer, working under pressure, Madison borrowed from a colleague, in this case a New Yorker named John Lansing who had first used the phrase “due process” in preparing the New York Bill of Rights two years before.

Madison didn’t take the trouble to tell us what he thought “due process of law” really meant. Madison made no comment on “due process” in any of his papers. The journals of the House and the Senate contain no reference to its meaning. Although we can speculate, there is in the end, no helpful contemporary clue to the meaning of due process in the minds of those who framed it and ratified it in the 18th century.

History in England

The best evidence of its meaning is the history of the concept of fundamental fairness, a history which started at least as early as June 1215 when the rebellious barons met King John on the field at Runnymede. They forced him to recognize that “No free man shall be taken or imprisoned or disseised or outlawed or exiled or any way destroyed…except by the lawful judgment of his peers, or the law of the land.” By 1354 the “law of the land” clause of the Magna Carta had been expanded to prohibit the King from taking the lives or properties of his people, “without being brought in answer by due process of law.”

By 1791, the phrase “due process,” or its equivalent “the law of the land” was recognized by Coke and Blackstone as synonymous with traditional fairness, certainly in the judicial process itself, and almost certainly in the substance of the law as well.2 Madison no doubt understood due process in these same fundamental and ancient terms but he did not say so and thereby left the rest of us to divine its meaning for ourselves.

Two hundred years after Madison put quill to parchment, the phrase “due process of law” therefore remains mute and serene upon the page of our Constitution, leaving us to project upon it the meaning we as Americans choose to give it.

As Lewis Carroll explained the meaning of disputed words to Alice in Wonderland: “When I use a word, it means exactly what I choose it to mean – neither more nor less… The question is which is to be master.”3

For the last two hundred years, we have attempted to decide just who is master, to decide just what deprivations of life or liberties are so fundamentally wrong as to be “without due process of law.”

Until the Civil War, we ignored the due process clause of the Fifth Amendment, leaving the states to sort out questions of basic fairness in criminal law. Not surprisingly state courts had little interest in such matters at the time.

Shift in Power

The Civil War however changed all that. The Civil War served as our second Constitutional Convention. Without changing a word of the original text, the war insured that no individual state could ever again stand up to the collective might of the states united. The shift in the balance of constitutional power was unspoken but enormous.

Riding on a pent-up surge of moral indignation, the victorious northern abolitionists amended our National Constitution to make it unmistakably clear that due process applied to all the states and that it protected all the people, regardless of race or citizenship. The Fourteenth Amendment was intended to insure that Black Americans were not deprived of their rights by still rebellious Southerners. But, it went beyond that elegant goal, overdue and provided “(N)or shall any State deprive any person of life, liberty or property, without due process of law …”

At a stroke the practice of criminal law became a national matter. No longer were the states divided by their separate notions of what might constitute due process to their citizens. Henceforth, the states were required to fulfill a national not a local vision of what constituted fundamental fairness for those who stood accused of crime.4

Since 1868, the due process clause of the Fourteenth and that of the Fifth Amendment have defined the character and scope of the American system of criminal justice. For better or for worse, our national notion of due process has defined the outermost limits of how we treat ourselves when we are accused of crime.

Our disputes about just what due process means have been as varied as the nature of our people.

Does due process require society to pay for a lawyer if a citizen is too poor to hire one? “No,” said the Supreme Court in 1942. ‘Yes,” said the Court in 1963. 5 Does due process prevent a state from retrying and executing a citizen who has been acquitted on a capital murder charge because double jeopardy is included in due process? “No,” said the Supreme Court in 1937. “Yes,” said the Court in 1969. 6 Does due process give an American the right to confront his accusers in state court? “No,” said the Supreme Court in 1904. “Yes,” said the Court in 1965.7

What is fair in one generation becomes unfair in the next. In an effort to achieve intellectual consistency, our judges and scholars have tried to determine whether the due process clause of the Fourteenth Amendment incorporates all the specific rights set out in the first eight amendments or whether the due process clause simply absorbs some of these rights (The first, said Hugo Black in Betts v. Brady , The second, said Justice Cardozo in Palko v Connecticut ; somewhere in between, said the Court the 1960s).

More broadly, and more recently. we have debated whether due process is a part of a “Living Constitution” in which a majority of our Supreme Court declares the emerging consensus of the American people with respect to our basic values. Justice Brennan was the last forceful spokesman for this once common view. As he observed in dissent:

The document that the plurality construes today is unfamiliar to me. It is not the living charter that I have taken to be our constitution; it is instead a stagnant. archaic, hide?bound document steeped in the prejudices and superstitions of a time long passed. This Constitution does not recognize that times change, does not see that sometimes a practice or rule outlives its foundations. I cannot accept an interpretive method that does such violence to the charter that I am bound by oath to uphold.8

On the other hand, there are those who believe that their duty is to seek “Original Understanding” of the due process clause in an effort to apply 18th century values to 20th century issues. There is little question that Chief Justice Rehnquist as well as Judge Bork have carried this view to its outermost limits.9

The disputes between Total Incorporationists and Partial Incorporationists, between those who believe in the “Living Constitution and those who believe in “Original Understanding” have littered academic and judicial battlefields with various kinds of combat promotions and demotions.10

At first glance there is no single consistent principle which explains these curious and often contradictory explanations of what “due process” is really all about.

Fear Is The Principle

Yet there is such a principle.

It is fear.

America’s sense of due process expands and contracts depending upon how threatened we feel as a people. Our notion of what is fair in a criminal case depends upon how much we fear our basic values are at risk.

When we are self-confident about ourselves and our institutions, our national sense of fairness becomes expansive. It is no accident that Earl Warren, a Republican and former state prosecutor, led the move for the fullest possible expansion of due process since the Civil War. Warren and his generation had fought and won World War II. America was the most powerful and prosperous nation in the world and it was confident of its abilities at home. Americans did not fear crime but understood it as an outgrowth if other conditions that could be treated and cured. In the fulll flush of that confidence, Warren and his colleagues knew that justice was a process and that the process was ultimately more important than the individual result.

On the other hand when we are alarmed by a sense of national peril, when we are hesitant about our abilities to meet the challenges around us our national sense of fairness contracts. It is likewise no accident that William Rehnquist, a Republican and a former federal prosecutor, led the retreat from Warren’s vision. Rehnquist’s generation of Americans lost the war in Vietnam. It fears that it is losing the war against drugs. It knows it is losing the war against crime. And so this generation of American judges, radiating the most basic fears of our society, takes a crabbed view of due process and restricts what it wrongly perceives to be the “rights of criminals” rather than the rights of citizens.11

“Rather injustice than disorder” was Goethe’s chilling prescription for 19th century Germany and it applies equally well to late 20th century American judicial values that attempt to justify aberrations in the judicial process by pointing to the self-evident guilt of the accused. In this fear-bound view, the result justifies the process, the ends the means.

Because of the nature of our National Constitution, each generation of American lawyers enjoys a remarkable opportunity to articulate and redefine our most basic values as a people The effort to define fundamental fairness in a way that protects rather than repudiates the essential dignity of our judicial process is the paramount constitutional challenge now before us.

The challenge requires courage in identifying and proclaiming unfairness whenever it may appear, no matter how unappealing the facts of any individual case. It requires skill in persuading individual judges chat the doctrine of harmless error may save convictions but it is never harmless to the dignity of the court nor the constitutional values that have been transgressed by the error itself.

More pervasively, the challenge requires a commitment to public debate in an effort to persuade Americans that more jails and longer sentences are a false answer to our fear, that the answers to crime and drugs depend on broadening the solutions not narrowing the Constitution.

Lawyers who choose to defend criminal cases are accustomed to daunting challenges. As we renew our struggle to define fundamental fairness in this our third century of national existence, it is imperative that we remind ourselves and others that justice is a process not a result and that the purity of that process is ultimately more important than the results the process might achieve.

1. Brady v. Maryland , 373 U.S. 83, 87 (1963).

2. For an interesting article on the history of the due process clause, see Riggs, Substantive Due Process In 1791 , 1990 Wis.L.Rev. 941 (1990). Riggs argues convincingly that both procedural and substantive due process have their roots in the Magna Carta. He also helps explain why most early state constitutions use the phrase, “law of the land” rather than “due process”.

3. Lewis Carroll, Through the Looking Glass , page 278 (Hall Edition, 1980).

4. Judge Charles Moylan and Professor Hohn Sonsteng have provided an invaluable review of this process in their interesting article, “Constitutional Constraints on Proving ‘Who Dunnit'”. Moylan and Sonsteng, Constitutional Constraints on Proving Who Dunnit , 16 William Mitchell Law Review, 171 (1990).

5. Betts v. Brady , 316 U.S. 455, 471 (1942)(Rejecting the idea that due process required the appointment of counsel at state expense for indigents); Gideon v. Wainwright , 372 U.S. 335, 339 (1963)(Determining that due process does require appointment of counsel for the indigent).

6. Palko v. Connecticut , 302 U.S. 319 (1937); Benton v. Maryland , 395 U.S. 784 (1969).

7. Compare West v. Louisiana , 194 U.S. 258, 262 (1904) to Pointer v. Texas , 380 U.S. 400, 403 (1965).

8. Michael H. v. Gerald D. , 109 S.Ct. 2333, 235 (1989).

9. In U.S. v. Villamonte-Marquez , 462 U.S. 579 (1983), Chief Justice Rehnquist approved a search of a vessel in a ship channel in 1980 on the grounds that in 1790 the first Congress enacted a comprehensive statute approving similar searches. The enactment of the enabling statute by the same Congress that promulgated the Bill of Rights, “gives the statute an impressive historical pedigree…”. Id. At 584-85.

10. If anyone doubts that values have meaning and timing is everything, note the difference in the judicial careers between Rehnquist who became Chief Justice and Bork who didn’t make it to the Supreme Court. Their values were similar. Their careers, very clearly, have not been. For a more detailed description of the guerilla warfeare that exists between academics see Siegan, Majorities May Limit the People’s Liberties Only When Authorized To Do So By The Constitution , 27 San Diego Law Review 309 (1990).

11. Packer, Two Models of the Criminal Process , 113 U. of PA. L.Ref. 1 (1964). Packer argues that there is a Due Process Model and a Crime Control Model for our criminal justice system and that we pass from one to another depending upon the immediate needs of our society. There is little doubt that the Crime Control Model is now in the ascendent. Eight-year old Andrew Fels called my attention to the fact that the difficulty with this model was pointed out by the late Walt Kelly over twenty years ago: Hyena (Spiro T. Agnew): “Lawnorder will prevail! I fine you another thousand, and remand you to the custody of your cell.” Churchy LaFemm: “How about the Bill of Rights?” Howland Owl: “Shh… You can pay that later.” Kelly, Impollutable Pogo , 106 (1970)

– Published in the The Champion, May 1992