What Does Due Process of Law Mean in the Fifth Amendment


Jake wants to open a restaurant in his city. He buys land and begins the process of obtaining the necessary licenses and permits. There is a local council that decides whether or not to issue licenses to businesses in the city. The council did not believe the town needed another restaurant and denied Jake a license. Jake inquired about an appeal process against the commission`s decision, but the regulatory code does not allow for appeals of the commission`s decisions. If Jake sues the regulation and the Commission process, what arguments could she make against the Commission`s process? The due process clause provides that no State may deprive a person of life, liberty or property without due process. There has been historical controversy over whether the framers of the Fourteenth Amendment intended the word person to refer only to natural persons, or whether the word citizen was replaced by the word “citizen” to protect businesses from repressive state laws.24 Already in the Granger cases25 of 1877, the Supreme Court upheld various state regulatory laws, without raising the question, whether a company can file a due process request. Moreover, there is no doubt that a business cannot be deprived of its property without due process.26 Although various decisions have held that the freedom guaranteed by the Fourteenth Amendment is the liberty of natural persons,27 non-artificial persons,28 one news organization nevertheless successfully opposed a state law depriving it of its freedom of the press.29 Privacy, which is not explicitly mentioned in the Constitution, was in Griswold v. Connecticut (1965), in which the Court held that the criminal prohibition of contraceptives for married couples violated federal personality rights enforceable by the courts. The right to contraceptives was found in what the Court called the “darkness” or dark edges of some amendments, which presumably relate to certain personality rights. Griswold`s criminal reasoning has since been discarded; The Supreme Court now uses the due process clause as the basis for various unlisted data protection rights. Although the majority opinion was never expressed, some have argued that the Ninth Amendment (which deals with unenumerated rights) could be used as a source of fundamental rights enforceable by the courts, including a general right to privacy, as Justice Goldberg explained in Griswold. [42] If the state restriction restricts liberty in a manner that does not involve a fundamental right, a rational baseline examination is conducted.

In this case, a legitimate interest of the government is sufficient to pass this examination. There is also an intermediate level of review called an interim review, but it is primarily used in cases of equal protection and not in due process cases. [51] Although there is no definitive list of “necessary procedures” required for due process, Justice Henry Friendly has developed a list that remains highly influential in terms of both content and relative priority: Procedure Due process upholds the principle that the government cannot act arbitrarily, capricious or unreasonable when it subjects a person to the laws of the state. While the scope of due process rights may be challenged, its theoretical basis is firmly established and forms the basis of much modern constitutional jurisprudence. The adoption of the Reconstruction Amendments (13th, 14th, and 15th) gave federal courts the power to intervene when a state threatened the fundamental rights of its citizens,14 and one of the most important doctrines stemming from this is the application of the Bill of Rights to States through the Due Process Clause.15 Through the selective incorporation process, Most of the provisions of the First Eight Constitutional Amendments, such as freedom of speech, freedom of religion, and protection from improper search and seizure, are enforced against the states as well as the federal government. Although the application of these rights against States is no longer contested, the inclusion of other substantive rights has been achieved, as will be discussed in detail below. Due process has also been an important factor in the development of personal justice law, in that it is inherently unfair to the judicial system of a State to remove the property of an unrelated person. An important part of U.S. constitutional law is therefore concerned with determining what types of relationship with a state are sufficient for the assertion of that state`s jurisdiction over a non-resident to be consistent with due process. Of course, this narrow meaning is familiar to all American lawyers: it is the meaning of the word “trial” as used in the expression “service of procedure.” A lawsuit is a formal document that informs a person of a legal obligation, such as a defendant`s obligation in a civil action to appear in court (at the risk of not appearing).

The process may also confer a power, such as the power to arrest a person or seize their home. The Mathews approach is most effective when viewed as a set of instructions for lawyers involved in litigation related to procedural matters. Lawyers now know how to convincingly demonstrate a procedural request for “due process,” and the likely effect of this approach is to discourage litigation that draws its driving force from the narrow (albeit persuasive) circumstances of a given person`s position. The difficult problem for courts in the Mathews approach, which may be inevitable, is suggested by the absence of a firm doctrine on the content of “due process” and the breadth of investigation required to present their claims in a particular context. Initially, a judge has few benchmarks and must rely on considerations (such as the nature of a government program or the likely impact of a procedural requirement) that are very difficult to develop in a trial. The Supreme Court has formulated a balancing test to determine the severity with which due process requirements should be applied to a particular disadvantage, for the obvious reason that the imposition of such requirements in the most complete manner would cripple the machinery of government, even for the slightest deprivation.