Due Process Part Of The 5th Amendment – Term Paper Example
Due Process Part of the Fifth Amendment Introduction The United s Fifth Amendment s that “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.” This paper delves into the due process clause of this amendment (Brezina, 4).
The due process clause of this amendment is one of the most important clauses of the Fifth Amendment; and is founded in the Magna Carta that king John Runnymede signed in the year 1215. Clause 39, which is the grand parent of Anglo-American law’s due process provisions, is the most famous passage. It states that “no free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will we proceed against to prosecute him, except by the lawful judgment of his peers and by the law of the land.” Through the centuries, this passage has become known as “the law of the land” and it is the antecedent to Due Process of Law of the United States of America (Alexander and Alexander, 765).
Due process clause establishes that in depriving people of life, liberty or property, the government must act with fairness (Brezina, 39). Apparently, due process relates to procedural fairness, although there are instances when the Court has given this clause, together with its companion clause in the Fourteenth Amendment, a substantive content as well. Both the Fifth and Fourteenth amendments guarantee the right of due process. In the late 19th and early 20th centuries, this provision was at times used to void economic regulations and to outlaw forms of racial segregation at both the state and federal level (Vile, 190).
The language of the due process clause of the Fifth Amendment is virtually identical to that of the Fourteenth Amendment, the difference being that that of the Fifth Amendment binds the action of the federal government, while that of the Fourteenth amendment binds the action of the state (Emanuel and Emanuel, 148). Alexander and Alexander explain that due process was repeated in the fourteenth amendment to make sure that the right applied to states governments – due process serves the purpose of extending justice and fairness to individuals in relation to government. According to him, it provides a protection against the state’s encroachment of individual interests and rights, establishing a fundamental balance between individuals’ rights and the exercise of the power of the police of the state (765).
In the federal constitution, due process of law has four aspects namely substantive due process, which is the essence of life, liberty and property, both implicit and explicit – the nature and substance of the interest of an individual. There is also the procedural due process, which establishes the mechanics of finding out the truth regarding a given situation; and the vagueness test, which protects individuals against capricious and arbitrary governmental actions. The fourth aspect of due process is the irrationality and presumptions test, which calls for legal logic to the action of the state in restricting or taking the rights or interests of an individual (Alexander and Alexander, 766).
Vile asserts that even though all constitutional provisions are subject to judicial interpretation, the due clause appears to permit greater leeway compared to many less open-ended clauses (190). Brezina as well explains that owing to the fact that due process is an abstract concept; there is usually a disagreement among judges regarding its correct interpretation. Some argue that due process consideration should be restricted closely to its original scope under English common law. This has a tendency of limiting it to legal procedures. Others argue that due process reflects fairness standards, which may change over time (39).
Apparently, due process of the Fifth Amendment, which originated from the concept of rule of law as discussed in this paper, is a fundamentally important clause as far as the protection of the rights of the Americans is concerned. In the United States’ context, this clause, gives reference to the way in which laws are enforced as well as why laws are enforced. It protects all individuals, whether aliens or citizens, as well as corporations.
Alexander, Kern and Alexander, David M. American Public School Law. Belmont, CA: Thomson/West, 2005. Print.
Brezina, Corona. The Fifth Amendment: Amendments to the United States Constitution: the Bill of Rights Series. New York, NY: The Rosen Publishing Group, 2011. Print.
Emanuel, Steven and Emanuel, Lazar. Constitutional Law. New York, NY: Aspen Publishers, 2008. Print.
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Vile, John R. Encyclopedia of Constitutional Amendments: Proposed Amendments, and Amending Issues, 1789-2002. Santa Barbara, CA: ABC-CLIO, 2003. Print.