Interpretation: The Fifth Amendment Due Process Clause | Constitution …

The least controversial aspect of the Fifth Amendments Due Process Clause is also its least interesting. The clause may reiterate the rule of law itself with respect to the ways in which decisions are made. Whatever else it means, due process of law very likely means the government must follow procedure called for by the applicable law, other than the Due Process Clause itself. (For example, if an applicable statute says that the courts of appeals must hear oral argument in certain cases, they may not limit parties to written submissions.) While a promise by King John to respect the rule of law may have been significant in 1215, when an ancestor of the Due Process Clause first appeared in Magna Carta, in our legal system with a written constitution, it is simply assumed that the executive and the courts must operate in accordance with legal rules.

Whether the Due Process Clause adds any procedural requirements of its own is more doubtful, but it may. On one hand, due process of law is sometimes used to mean something more than compliance with whatever procedural rules the law contains. On the other hand, constitutional drafters who wanted to make sure that government decisions were subject to procedural requirements might have thought such a vague provision to be too unclear to impose specific requirements on top of the procedural rules contained in other laws.

The history of the Due Process Clause suggests another reading, one that was very important for many decades but that has largely dropped out of sight. According to this interpretation, due process of law means specifically the procedures that are used by, and only by, the courts. Courts decide according to existing law after giving parties notice and a hearing. According to this interpretation, the Clause is part of the separation of powers: it absolutely forbids the executive and the legislature from doing what the courts do, which is to deprive people of life, liberty, or property. As an historical matter, this reading was mainly deployed against legislation that directly altered property rights by pure force of law, like statutes cancelling corporate charters previously granted. While this reading played a very important role in constitutional history, it is subject to the objection that it just reiterates the separation of powers itself: if there are functions that only courts may perform, the separation of powers keeps the legislature and the executive from performing those functions. This reading of the Due Process Clause (and of analogous provisions in state constitutions) was the textual foundation of the nineteenth century doctrine of vested rights, according to which private property, and private rights created by contracts, were protected against legislative alteration.

Substantive due process as it is currently understoodmeaning that the government may not violate certain fundamental rights that do not appear elsewhere in the Constitution, and may not draw certain classifications (for instance, based on race or sex), without especially strong justificationis difficult to justify in light of the text and history of the Fifth Amendment. The text is at best a very indirect way of saying that government must be reasonable, that unidentified but important interests are protected to some substantial but unidentified extent, and that some unidentified grounds of distinction must have an especially strong justification. If the drafters wanted to convey any of those messages, they would have done so much more openly and in much greater detail. The history does not suggest that the Due Process Clause of the Fifth Amendment was anything like as important or ambitious as current substantive due process doctrine makes it.

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Interpretation: The Fifth Amendment Due Process Clause | Constitution ...