The Little Word Due
51 Pages Posted: 6 Jan 2005
The word "due" in the Fifth and Fourteenth Amendments of the U.S. Constitution has a rich and interesting meaning. The present article reevaluates the objectivistic (rather than subjectivistic) interpretation of this critical little word of the Due Process Clause. This objectivistic interpretation was championed by the late Justice Hugo Black, and was recently cited by Justice Thomas relative to detention of enemy combatants. According to Black's objectivistic interpretation of the word "due", judges must obey positive law rather than the judiciary's own contrary principles and precedents in order to determine what is substantively or procedurally owed to a person who is seeking judicial relief. This objectivistic interpretation was the meaning intended by the framers, as evidenced by the text and structure of the Bill of Rights, and also by the textual and structural relationship between the Due Process Clause and the notorious Fugitive Slave Clause.
When the State of New York ratified the U.S. Constitution in 1788, it became the first state to propose an amendment guaranteeing due process of law. That proposal by New York led to the Due Process Clause of the Fifth Amendment, which restrains the federal government. The clause was copied in 1866, by the framers of the Fourteenth Amendment, so as to restrain the state governments as well. The Due Process Clause is now increasingly used by courts to nullify both procedural and substantive statutes, recently including so-called sodomy statutes in Lawrence v. Texas, 123 S. Ct. 2472 (2003). The question is whether the courts have overstretched the word "due".
In addition to analyzing the text and structure of the Constitution, the present article also takes a fresh look at the historical record, and at the definitions used when the Bill of Rights was written. Newly published correspondence of Roger Sherman lends additional support to the conclusion that the objectivistic interpretation of the word due is the interpretation that is consistent with the definitions used by the Framers, and with the text and structure of the Constitution.
Keywords: Due process, due, substantive due process, liberty clause, procedural due process, judicial activist, activist judges, judicial activism, Lawrence v. Texas, sodomy, due process clause
JEL Classification: K00, K1, K10, K14, K42, K4, K40
Suggested Citation: Suggested Citation