The Liberal Evolution of Due Process (Part I)

Liberals have a way of changing the definition of words to fit their needs. A good example of this behavior is how the meaning of the phrase “Due Process” in the Constitution changed. The meaning gradually changed over the century following the ratification of the Fourteenth Amendment in 1868 following the Civil War.

During the ratification of the Constitution and the Bill of Rights, James Madison wanted to include an amendment as part of the Bill of Rights that applied to the states. Madison wanted to prevent states from infringing on the rights of the conscience, freedom of the press, and trial by jury. The amendment was denied. Also during the ratification process of the Constitution Hamilton wrote in the Federalist Papers 78 and 81: That the judiciary branch of government (Supreme Court) is by far the weakest branch of the government since they can only hand down rulings and they do not have the power to enforce those decisions. In other words, the judiciary needs the executive branch to carry out their rulings. Hamilton explains the main purpose of the Supreme Court is to prevent the legislative branch from exceeding its power (not the states from exceeding their power). The court would declare Congressional laws in violation to the Constitution null and void (unconstitutional). Unfortunately, it was never discussed in these papers as to what happens when the Supreme Court says laws are Constitutional which obviously fail to protect the liberties of the people. In other words, the Supreme Court does not have unlimited power to carry out laws as they see fit.

In 1933 in the case Barron v. Baltimore, the Supreme Court decided the Bill of Rights of the Constitution applied only to the Federal government and not the states. This ruling held until the passage of the Fourteenth Amendment in 1968. To show the evolution of the meaning of “due process”, first we must show the two amendments the term “due process” appears in the Constitution (5th and 14th Amendments):

The Fifth Amendment states: "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."

The first clause of the Fourteenth Amendment states: “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 or 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.” In 1873, for the Slaughter House cases, the Supreme Court essentially wrote out the “privileges and immunities” clause of this amendment and that precedent has held up through the present time. With the privileges and immunities clause written out of the Constitution, liberals had to focus all their energies on the “due process” clause of the amendment.

Many thought the intent of the Fourteenth Amendment due process clause was to apply the Constitutions Bill of Rights to the states. In the 1884 case Hurtado v. California the argument before the Supreme Court was to use the Fourteenth Amendment “due process” clause to guarantee the Fifth Amendment’s “right to grand jury indictment” clause to the states. When the Court rejected this argument it became apparent that the Fourteenth Amendment’s due process clause was not going to be allowed to apply the Constitution’s Bill of Rights to the states. The Court held that the due process clause of both the Fourteenth and Fifth Amendments had the same meaning. They further decided that the clauses throughout the Fifth Amendment were not repetitive or redundant. Hence, “due process” could not mean the same thing as a right to a grand jury indictment. This was known as the “nonsuperfluousness” theory.