Due Process and the Significance of Interpretation

The concept of “Due Process” is a uniquely American one, the significance of which has changed as much as has the societal and political times of the American nation. Today, some critics argue that Due Process is a thing of the past, what with the passing and signing into law of the National Defense Authorization Act, which authorizes the military to arrest and detain indefinitely civilians suspected of being terrorists. Nonetheless, it is not the lawmakers who have traditionally defined Due Process but the courts. This paper will discuss the meaning, history and importance of the constitutional concept of “Due Process” as contained in the Fifth and Fourteenth Amendments to the United States Constitution. It will also include a brief discussion of the conflicting positions of Justice Hugo Black and Justice Felix Frankfurter with respect to the incorporation of rights under the Due Process Clause of the Fourteenth Amendment, and how these positions helped develop the concept of Due Process.

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Background: The Fifth and Fourteenth Amendments

The Fifth Amendment as stated in the United States Constitution essentially guaranteed due process of the law in all federal courts: “No person shall be held…nor be deprived of life, liberty, or property, without due process of law” (U.S. Const. Amend. V). The Fourteenth Amendment, as interpreted by Earl Warren of the Supreme Court nearly a century after the Amendment’s ratification, basically asserted that due process applied to state courts as well as to federal courts, an application that revolutionized the way the criminal justice system operated on state and local levels.

If the original Bill of Rights was meant to protect citizens from the tyranny of a central government, the Fourteenth Amendment addressed the citizen’s relationship to State power as well: “No State shall…deprive any person of life, liberty, or property, without due process” (U.S. Const. Amend. XIV). Intended to deal with the issue of citizenship in the South in the wake of the Civil War, the Fourteenth Amendment became filled with implications later on in the American judicial system — at least in the eyes of the courts.

Black and Frankfurter: Two Opposing Interpretations

As social systems have changed, so too have the ways in which in the law of the United States can be interpreted. The tension between objectivity and subjectivity in philosophy (a tension equal to the gulf between the old, medieval world of scholastic thought and the new, modern world of skepticism, doubt and Hegelian dialectic) altered not only society’s perception of universals, truths and transcendentals but also judges’ perception of the law. The letter of the law and the spirit of the law could be called into question as easily as one could create a “reasonable” doubt as to their intent and meaning. For judges like Justice Hugo Black, the Due Process Clause had a precise and objective meaning, as he wrote in the Supreme Court Decision In re Winship, 397, U.S. 358 (1970), yet that “precise” and “objective” meaning depended, of course, on the perspective of the Justice doing the defining. For Black it was clear: “[T]he only correct meaning of that phrase 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” (Ely, 1980, p. 190). Due Process on the state-level was non-negotiable: the “law of the land” as interpreted by the courts said so.

Yet, as John Hart Ely observes, for all of Justice Black’s emphasis on the Constitution, “the propriety of equating this ‘law of the land’ concept with due process is far from clear” (p. 190). Perhaps for this reason, Justice Felix Frankfurter refused to apply the Fourteenth Amendment to the State Powers. An advocate of judicial restraint, Justice Frankfurter noted in Irvin v. Dowd that “the federal judiciary has no power to sit in judgment upon a determination of a state court” (Eisler, 1993, p. 161). This view contradicted that of Justice Black and of one of Black’s supporters, Justice William J. Brennan. While it had been clear to Brennan that the Fifth Amendment had no relation to States’ rights, Brennan followed Black in asserting that the Fourteenth Amendment dealt specifically with States by asserting the authority of federal law over the States. Brennan believed that the Fourteenth Amendment “provided the mechanism” through which the Bill of Rights could be applied to the States, including the concept of Due Process (Eisler, 1993, p. 167).

The Warren Court

Baker v. Carr was an important case that gave the Justices of the Supreme Court an opportunity to define the Fourteenth Amendment’s relation to the States: “Earl Warren himself would often call it the most interesting and significant case of his tenure” (Eisler, 1993, p. 168). In Colegrove v. Grove, Justice Frankfurter had asserted that the Supreme Court should not interfere in the judgments and processes of state courts. In other words, Frankfurter did not view the Fourteenth Amendment as an amendment that could allow the federal court to say how due process should be effected on state levels. Frankfurter called it a “political thicket” that should best be avoided (Eisler, 1993, p. 169).

But Baker v. Carr opened the door to the “political thicket” and in fact changed the relationship between state and central courts. Brennan was instrumental in effecting this change: “Within three years of the Baker v. Carr decision…the federal courts would soon order exactly what parameters states had to follow” (Eisler, 1993, p. 177). The application of the Due Process Clause to the States, by way of the Fourteenth Amendment, according to the Earl Warren Court, with Justice Brennan advocating the position of Justice Black, the federal courts delivered a decisive blow to State Power. It was not exactly a question of citizens’ rights: it was a question of federal authority over states’ rights. The spirit of the Civil War-era Amendment was alive and well in the Warren Court: states were to submit to central power.

Due Process for All (and None for States)

The first significant decision concerning Due Process came in 1855 in Murray’s Lessee v. Hoboken, which came ten years prior to the ratification of the Fourteenth Amendment. The decision in this case simply asserted that the Constitution embodied the “law of the land,” and covered the rights of all citizens. The Dred Scott decision changed this, however. Then again a few decades later the Hurtado Court re-asserted the Murray interpretation, but did so with vague principles concerning liberty and so on. Each interpretation and re-interpretation was like a power play, in which the balance of power tipped from one end of the spectrum to the next. The judges determined where the basis of power should reside, whether in the states or in the federal government (Hyman, 2005).

In 1940, Cantwell v. Connecticut pushed the concept of Due Process. It applied the First Amendment, regarding the practice of religion, to the States, further diminishing the authority of individual states to determine the appropriate course of due process of the law. According to Cantwell v. Connecticut, federal courts were the lone deciding voice over states. As Tom Woods (2008) notes, while Cantwell indicated that “the First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws,” there remained “no historical demonstration whatsoever of what truly was a radical proposition — that the Fourteenth Amendment had inverted the American federal system in regard to religion” (p. 105).

In other words, the Supreme Court had shown in Cantwell that it could re-interpret the whole of the relationship between States’ rights and Federal power whenever and however it chose. But of course, this tension had always existed in America and it would continue to exist, right up to our current time, even though the issue of due process and states’ rights may seem rather distant and insignificant in the face of the much more harrowing reality of a “war on terror.” Woods observes that the Supreme Court which issued the Cantwell decision simply refused to acknowledge the rights of states to determine their own due process. Woods also notes that the Supreme Court in 1873 “said that it could not imagine how the amendment’s provisions ever could be held to apply to any situation other than that of freed blacks” (Woods, 2008, p. 106). This means that the context of the Fourteenth Amendment (post-Civil War, the end of slavery) had a special significance for that Court. Proceeding Courts determined that the Fourteenth Amendment actually meant more than the Court in 1873 thought it did. By 1905, in fact, in Lochner v. New York, the Due Process Clause was being used to apply the “laissez-faire preferences into the Constitution — that is, for writing libertarian economics into ‘constitutional law'” in an effort to override state economic laws that were at odds with federal lawmakers, politicians, lobbyists, judges, businessmen and the like (Woods, 2008, p. 106).

The Uniqueness of Due Process

While Due Process had its inception in the Magna Carta, what made it so unique in America was precisely this balance of power between states and central government. When that balance of power tilted in favor of central government, thanks to the interpretations of the Fourteenth Amendment by successive Courts, the Due Process Clause ceased to be so unique. The history of America stopped being the story of a 13 colonies asserting their independence from a tyrannical crown and became another story of an empire; the states lost whatever power they had. They might resist, but the Civil War illustrated what would happen if they did. It is no surprise that the Fourteenth Amendment came directly on the heels of this ultimate expression of the tension underlying the American system of government. The Amendment was the ultimate slap at the rights of states to determine their own destinies, their own due process of law. The states would be united under one law — the law of the Courts.

The history of Due Process is one that is concerned, however, with more than the decisions of Supreme Courts and their interpretations of the Constitution in terms of specific cases, precedents, etc. It is a history that concerns Presidents, the men who appoint the Justices; it is a history that concerns lobbies, the men who appoint the Presidents; it is a history of business, the men who appoint the lobbies.

Even in 2003, in the case of Lawrence v. Texas, the Courts continue to “denounce narrow interpretations of the Due Process Clauses” (Hawkins, 2006, p. 410). Due Process, broadly interpreted, which is to say, expanded to all states at the expense of states’ rights, is something that has broad appeal to federalists. This sort of federalism has never gone away and never really been out of the limelight of American politics. Even though in 1997 in the case of Washington v. Glucksberg the Supreme Court issued what has been perceived as a narrow reading of Due Process, regarding assisted suicide and the citizen’s right to die, here is no indication that Due Process in so far as states are concerned has any life whatsoever left in it. If 2012’s NDAA bill or the never-ending “war on terror” have not spoken in the strongest terms that the “law of the land” is whatever the Supreme Court says it is, that the hierarchy of courts points in one direction, and that state courts may be granted “jurisdiction” in matters that are of no concern to Chief Justices, it is perhaps worth asking what will speak in any stronger terms?


In conclusion, Due Process was originally meant in the Fifth Amendment to protect citizens of the first states from the tyranny of a federal government. With the crushing of the South in the Civil War and the ratification of the Fourteenth Amendment, the way was paved for federal tyranny to take its place in spite of the Bill of Rights and the protections they afforded. By granting “due process” to all, the Fourteenth Amendment granted it to none, at least whenever the Supreme Courts chose to ignore the fact that they had no more say over states’ rights to their own due processes of law that what the Constitution expressly permitted them. As court cases through the years have shown, however, Due Process (and states’ rights) only means as much as the next Court says it does.

Reference List

Eisler, K.I. (1993). The Last Liberal. NY: Simon and Schuster.

Ely, J.H. (1980). Democracy and Distrust: A Theory of Judicial Review. Harvard Hawkins, B. (2006). The Glucksberg Renaissance: Substantive Due Process Since

Lawrence v. Texas. Michigan Law Review, 105: 409-474.

Hyman, A.T. (2005). The Due Process Plank. Seton Hall Law Review, 43.

U.S. Constitution. Retrieved from http://www.law.cornell.edu/constitution/

Woods, T. (2008). Who Killed the Constitution? NY: Random House