Magna Carta At 800 And Due Process In America

(Author’s note: if you click the links and read the cases you’ll probably get a real legal education, of sorts anyway. We realize it’s a lot of reading, but hold out the hope that it will greatly enhance the reader’s understanding of what is posted here.)

On June 15, 1215 King John capitulated to his Barons and signed the Magna Carta in a place called Runnymede.

Just about 800 years ago exactly.

Runnymede is in England, a country with which we supposedly share the common law tradition, but that’s a large subject for another time.  So, too, are the various political intrigues surrounding Magna Carta and what it eventually came to mean in the fullest sense.  We’re not going to run with any of that today either.  Because whatever else Magna Carta stands for, there are some small number of principles that it is more or less not debatable that Magna Carta enshrined.  One of these is the jury trial.  Another is “due process of law”, which was originally expressed as “law of the land”.

We’re going to focus on the due process of law idea, and what has happened to it in the United States of America over the last, say, 50 years.  Because we know a lot about that.

There’s so much to say, but let’s begin by noting that the phrase “due process of law” appears in the 5th amendment to the United States Constitution (and probably in many if not all state constitutions but we’re going to focus on the US constitution right now) and in that 5th amendment form it provided that no person should be deprived of life, liberty or property without due process of law.

So a couple of preliminary observations:  1) the “due process” clause is a limitation on government conduct.  Obviously, a thief deprives you of your property without due process of law but the due process clause does not apply to that situation because the thief is not acting on behalf of the government; and 2) due process is required only in three situations, namely, where the government is going to deprive you of life, liberty or property.

One other preliminary observation:  due process doesn’t apply in war situations.  Just to be clear about things.  The general acts on behalf of the government, but he doesn’t have to worry about due process of law before ordering an air strike.  Which is not to approve of this or that air strike.  We generally don’t, if that matters.

Anyway.  Moving on.

All those preliminary observations aside, it can be fairly said that the most fundamental situation in which due process does apply is when the government prosecutes someone for a crime, in which case at least one but in many cases all three – life, liberty and property – are at stake.

Now, it is a truism that the due process requirement of the 5th amendment applied only to the federal government.  Which is not to say that the states were ever free to ignore the strictures, whatever they may be, of due process of law:  again, the states almost assuredly had due process ideas in their own constitutions.  But the state governments and the federal government are separate, or at least they were.  Or at least, in some ways.

But in the wake of the Civil War, the states became subject to a federal standard of observing due process of law by virtue of the passage of the 14th amendment, which provided that “No state shall deprive any person of life, liberty or property without due process of law.”  That occurred in about 1866.

What happened then?  For a long time, not much.*

In the 1880’s the Supreme Court considered the question of whether federal standards of due process of law (now applied to the states by the due process clause of the 14th amendment) required the states to prosecute felonies only upon an indictment by a grand jury, which was separately required of the federal government by that same 5th amendment.  The answer was no.  And to this day California does not have to prosecute felonies via grand jury indictment.

That didn’t go so well, then, if you’re a fan of grand juries.

Very little was said for about another 30 years.  But then in 1915 the Supremes are deciding a federal habeas corpus case and they say that this federal due process standard is a big deal with real teeth:

In the light, then, of these established rules and principles: that the due process of law guaranteed by the Fourteenth Amendment has regard to substance of right, and not to matters of form or procedure; that it is open to the courts of the United States upon an application for a writ of habeas corpus to look beyond forms and inquire into the very substance of the matter, to the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear upon the record or not; that an investigation into the case of a prisoner held in custody by a State on conviction of a criminal offense must take into consideration the entire course of proceedings in the courts of the State, and not merely a single step in those proceedings…

So at this point things are getting active, as Rollie Massimino used to say.  It was only eight more years until the next major Supreme Court foray into the question of federal due process applied to state criminal proceedings.

Thus in 1923 the Supreme Court decided that a state court trial that had degenerated into a “mob dominated” circus did not satisfy the federal standard for due process of law. Also that year, the SCOTUS opined in Meyer v. Nebraska regarding “due process”:

“While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Then in the 1930’s all hell broke loose.

It isn’t really well known today, even in legal circles, but the first time the Supreme Court really threw down the gauntlet on federal due process standards applied to state criminal prosecutions – because the 14th amendment – was the Scottsboro boys case out of Alabama that began in 1931. A group of black youths convicted of raping two white girls. Very emotional case in Alabama at that time.

Of course, the “due process” the kids received was a sham, a circus. The case went up to the SCOTUS in 1932 and that’s what they said and then they said 14th amendment and sent it back to be done right.

And of course it wasn’t. So the case went back up to the SCOTUS again in 1935 (!) only this time the decision rendered had more to do with the racial make-up of the jury, not due process of law proper. But the significant thing here is that having already laid down the law – the law of due process, that is – that must be observed by state courts in carrying out criminal proceedings, the SCOTUS, which is not a court of error, actually took up the same case again.

Don’t happen much.

It was at this same time – 1935 – that the SCOTUS further laid down the law in Mooney v. Holohan to the effect, basically, that the government couldn’t lie and cheat to get a criminal conviction, that doing so violated a person’s right to due process of law. It was a little embarrassing – at least the SCOTUS thought so – that this needed to be said:

Reasoning from the premise that the petitioner has failed to show a denial of due process in the circumstances set forth in his petition, the Attorney General urges that the State was not required to afford any corrective judicial process to remedy the alleged wrong. The argument falls with the premise.

Even so, it should be borne in mind that the California Attorney General argued that position, just as the Alabama Attorney General had argued in favor of the Scottsboro boys convictions.  A state Attorney General is a high official, and it’s just our opinion but we think the Attorney General should be a lawyer’s lawyer and a servant of the law, not a “zealous advocate”.

(As an aside, both Mooney and the Scottsboro boys cases involved communists advancing the due process arguments that eventually prevailed.  We generally don’t like communists around here, but when they’re right we admit they’re right.)

But let’s move on some more. This was the due process revolution in the SCOTUS; these were the cases in which the rudimentary demands of justice, which is what due process has fundamentally meant since the beginning – since Magna Carta – were held to be mandatory and binding on government – all government – throughout the United States. We point this out because the “legal community” often touts the Warren Court decisions of the 1960’s as “the due process revolution”. As often happens, the legal community is pretty much wrong and misses the big picture. To the detriment of us all, I might add.

No, it was in the 1940’s and 50’s that federal due process standards really began to take hold. In 1940 even the constitutional literalist and purist Hugo Black had this to say in deciding Chambers v. Florida:

The scope and operation of the Fourteenth Amendment have been fruitful sources of controversy in our constitutional history. However, in view of its historical setting and the wrongs which called it into being, the due process provision of the Fourteenth Amendment — just as that in the Fifth — has led few to doubt that it was intended to guarantee procedural standards adequate and appropriate, then and thereafter, to protect, at all times, people charged with or suspected of crime by those holding positions of power and authority.

Then in 1942 the SCOTUS said in a couple of cases that the state could not obtain a conviction dishonestly – by taking contradictory positions in different prosecutions – and also that a state couldn’t obtain a conviction by threatening a criminal defendant with the use of perjury to badger and terrorize him into pleading guilty.

It might not seem like a lot, but this was a veritable 14th amendment due process of law blizzard coming out of the SCOTUS compared with, say, the period from 1866 to 1915.

In other words, this really was a due process “revolution”. But these cases reflected more than just a mechanical application of a clause in a constitutional amendment; they were really a re-assertion of the fundamental idea of due process as enshrined in Magna Carta all those centuries ago: the government cannot oppress; the government must be honest.

Unhappily, we must report that it is just this – the very foundations of our ideas of fair and just government – that have crumbled in the years since. We have our ideas about why, but that’s way too much for a blog post.  What we can do is continue to chronicle the failure.

In 1952 the SCOTUS – perhaps mindful of the oppressive government tactics employed by totalitarian governments in the great war just past – said that pumping a man’s stomach without his consent to get evidence that he possessed illegal narcotics was a due process violation. In 1959 they said – again – that the state government couldn’t lie and cheat to get a criminal conviction. And in 1967 they said it again, only this time it was not conceded by the state that they had thus obtained the conviction, but for the first time the SCOTUS indicated that the truth could not be mocked.

But by 2003, well, merely pumping someone’s stomach without their consent seemed like due process child’s play and there was disagreement on the SCOTUS over a situation far more like torture.

And by 2009, the United States Justice Department and the nation’s prosecutors as a whole were arguing in the SCOTUS – with a straight face, no less – that lying and cheating to obtain a criminal conviction didn’t violate the right to due process of law. As if Mooney, Pyle, Napue and Miller had been repealed, or somehow rendered meaningless.

Yet those cases are among the most notable pure descendants of Magna Carta in American law, based only on principles of justice so fundamental that they barely needed to be said in 1215, much less 1935. Much less today, yet here we are.

Maybe every generation, or every second or third generation, must fight for “due process of law” anew, for the simple reason that power corrupts.  Maybe Magna Carta is an eternal and ever-contemporary event. The times, people and circumstances change – King John is long gone –  but the principles remain the same.

And remain as fragile.



* We should note that in a different context, the SCOTUS became quite active on 14th amendment due process with the 1905 decision in Lochner v. New York.  But Lochner involved the “striking down” of laws enacted by legislatures.  This kind of case is far more removed from the due process enshrined in Magna Carta than the cases we are reviewing here.




Filed under financial crisis, wrongful convictions

9 responses to “Magna Carta At 800 And Due Process In America

  1. Jessie

    I’m curious what you think of the due process “exception” for administrative law. This allows, for example, sex offender registries. The states can legislate anything they want to qualify you for “sex offender” registration. So, for example, in my state, it includes burglary (yes, burglary — the real definition), witness tampering, and harassment. Not exactly the child molesters and rapists that the public believes these list are for. In about a quarter of states, public urination will land you on the list.

    There are a number of horribly pernicious factors to these registries. One is that the public doesn’t understand the mechanics of it and the registries are wildly popular. No politician in their right mind would examine or challenge registration for fear of seeming to support child rapists (even though, of course, the vast majority of people on these lists are NOT child rapists).

    Second, the judge has no discretion in recommending registration and it applies even if you’re not convicted, so long as you’re convicted of any charge arising from the same incident. So, let’s say you’re underage, you’re drunk at a party, and you wind up charged with rape and underage drinking. If you’re convicted of the underage drinking, but acquitted of the rape or, even if the rape charges are dropped….congratulations! You’re looking at lifelong registration as a sex offender.

    The charges don’t even have to be adjudicated at the same time, so you could be charged with the rape, have the charges dropped, then later be brought up on underage drinking, and if that charge sticks, you’re still going on the registry.

    The reason all this is legal is because it’s governed by administrative law, not criminal law. Substantive due process doesn’t apply. The Eighth Circuit at least has grumbled a bit about this, but been forced to concede that it does not apply. Because you’re not being deprived of life, liberty, or property.

    I should think this would be of grave concern to….well, to any thinking person, but particularly to defense attorneys. In some states, there’s talk of adding a “drug abuser registry.” I guess so you can buy an app for Facebook that will tell you “where the pot smokers live in your neighborhood!!” (Ironically, that could make it much easier to score pot, if you’re in the market…)

    Now, whether the registries “work” is a separate discussion. I would argue they do not, if only because the net is now so large and so diverse in terms of the types of crimes it’s applied to, that law enforcement doesn’t have a prayer of knowing who to check out if a child disappears (which was supposed to be the original intent of these things). Interestingly enough, the brains behind the registry — Patty Wetterling, whose son was famously abducted in 1989 — has done a 180 and is now opposed to the registries.

    But where does this shit stop? A “drug abuse registry” alone would increase the net exponentially and all it really amounts to is finding some way to keep anyone ever accused of crime on the law enforcement radar forever — all without any sort of due process because…administrative law.

    Even ex post facto doesn’t apply, so, for example, when the registries became tiered (i.e., now some only have to register for a few years and others for life), those who would have qualified for lifelong registration were bumped up to lifelong registration, even though they were adjudicated before the tiering went into effect.

    What’s it going to take for the courts to call bullshit on using administrative law for what is clearly a criminal penalty?

    Sorry…this is kind of off-topic, but I think it’s a big issue when talking about due process.


    • Hi Jessie.

      First, although at first blush I would agree that due process doesn’t apply because you’re not talking about life, liberty or property, I think a good argument could be made that there’s a liberty interest involved. I mean, if using contraceptives is a liberty interest…and so on.

      In support of that idea you could point out that the sex offender registry is a form of human branding:

      Second, the fact that it’s “administrative” and not criminal doesn’t control. Corporal punishment administered in public schools has been subject to due process analysis. Administrative punishments in prison can also be subject to due process requirements. As long as it’s government action affecting life, liberty or property due process can be brought into play.

      Third, I’m going to bring your comment to the attention of whoever it is that writes “Appellatesquawk”, a blog I link to that is all over the sex offender registry “issue”, which as you point out should be a big issue but isn’t because politics. In any event, the writer of that blog would greatly appreciate you remarks, I think.


      • Oh, one other thing I thought I should mention about SORA “effectiveness”. You make a good point that at this stage it’s so over-inclusive that it’s useless. This is also the main problem with intelligence gathering and government surveillance. It is often complained about (Snowden) but no one has a solution, because there isn’t one and really doesn’t need to be. We’ve been drowning in more information than we can ever hope to analyze for many years. When I was in the Navy in the 1980’s we had far more information than we could effectively use, even then. After the fact, you can go digging through the information you already have and find the evidence you need to convict; but before the fact, all that evidence looks just like all the other noise you already have.

        I can understand that people want protection against pointless and voyeuristic surveillance by the government. Once the technical capability is there, though, I don’t know how to accomplish that.


      • Jessie

        I know it’s incorrect to say due process doesn’t “apply” (this is where my being a non-lawyer shows through!)….but there was a case in the Eighth Circuit — Gunderson v. Minnesota Department of Corrections.

        Gunderson was charged with first-degree sexual assault against a woman he met in a bar. One problem though: The victim claimed vaginal penetration and that he ejaculated, and she went in immediately for a rape kit exam. But the exam found nothing. Some minor injuries to her face, but no evidence at all of sexual contact, when there should have been if her story were true.***

        So the charge is dropped, and later prosecutors bring a second petition, charging him with third-degree assault. He pleads guilty to the assault and is sentenced to probation.

        A year later, the cops come knocking. They arrest Gunderson for failure to register as a sex offender, which he didn’t even know he was supposed to do. Because of the double petitions and the compulsory registration requirements, even the JUDGE didn’t know Gunderson was supposed to register.

        So Gunderson sues the Department of Corrections on the basis that this is a substantive due process violation — not just a procedural issue, but he claimed the very fact of a registration requirement under these circumstances is a denial of due process.

        He lost the appeal, but the opinion from the Eighth Circuit is interesting. They eviscerated the registration requirements. They wanted to side with Gunderson, but the law wouldn’t allow them to. He was, in fact, convicted of a charge arising out of the same incident. Doesn’t matter that the rape charge was dismissed and the charge that stuck would not otherwise have placed him on the registry. Doesn’t matter that he was never told he needed to register. Doesn’t even matter that the judge did not KNOW to tell him. Under state law, he was a sex offender.

        Registration is not considered a criminal penalty, so perhaps it would be more accurate to say due process applies “differently.” But it is arguably a deprivation of liberty, given Megan’s Law, which requires that sex offenders be published in newspaper and they have a whole roster of places where they can’t live and can’t travel — churches, parks, schools, playgrounds, anywhere designated a “pedophile-free zone.” In larger cities, Megan’s Law has resulted in tent cities of homeless men who can’t live anywhere because they’re on the registry.

        These requirements have been around for long enough to be studied and there’s a whole lot of reasons this shit doesn’t work. For one thing, a lot of men on the registries (and they are mostly men) are not pedophiles. Some are, and some have sexually assaulted adult women. But there’s a disconnect between the public’s image that this is a list of child molesters, versus the reality that a great many of them have not committed any sort of sex crimes at all. State legislatures can make any offense they want subject to registration.

        So there are certainly some dangerous people on the registries, but they’re lost in a sea of overcharged people convicted of lesser crimes and those who, in fact, committed crimes (often petty crimes) that are not sexual. Guess it keeps the prisons full, though, which I suspect is part of the reasoning here, along with the public’s attachment to attacking the “stranger-pedophile” boogeyman. In reality, most of the people who sexually abuse children know their victims, so, even though such perpetrators are not sympathetic, keeping them away from parks and schools doesn’t do a damn thing to protect anybody. Except maybe to keep them homeless and harder to keep an eye on, ironically enough.

        But I don’t know what the answer is, shy of legislatures dismantling these registries (never gonna happen) or the Supreme Court declaring them unconstitutional (I’ll leave it to you to comment on the likelihood of that ever happening, although the Minnesota Supreme Court has finally cracked down on civil commitment and demanded that it either be reformed or they’re going to order all these guys released en masse, so maybe the courts are catching up slowly).

        ***This is a touchy subject that can quickly start a Gender War. Because, of course, a great many women are raped or sexually assaulted and they either never report it or find that reporting it is a second trauma all its own. It’s a privilege of being male to not really ever have to worry about this or even be able to fathom the experience of it. At the same time, there are false rape accusations and the Gunderson case seems to be a prime example of one. Life is complicated like that. I think it’s much easier to have a dialogue about it when men recognize that not having to fear rape and being disbelieved about it and being re-traumatized are aspects of privilege and that women’s experiences around this are different.


        • Okay, well, this is where things get really tricky.

          If you read that Gunderson case closely, the due process stuff, both “substantive” and procedural, is near the end. One case cited is Paul v. Davis, a SCOTUS decision dealing with government “branding”, that appears to be along the lines of procedural due process being implicated if there is “stigma plus” some other consequence to liberty or property.

          Interestingly, the case Gunderson cited in support of his due process position was a 2002 case out of the 2nd circuit, Doe v. Connecticut Dept. of Public Safety, that held the CT registration statute unconstitutional as violating due process, but that decision was reversed by the Supreme Court at 538 US 1.

          So as usual, the SCOTUS penchant for siding with the government against individuals bears upon this question you have asked. I guess the law is that “branding” alone does not implicate due process, but if something more is involved it might. What the “something more” is I don’t know.

          One other thing is that the registry requirement Gunderson complained about put him on a list that was not only NOT public, but was to be treated as “confidential” by law enforcement. In other words, for law enforcement use only, so for Gunderson even the “branding” argument was pretty weak.


          • Jessie

            Thank you! This is fascinating stuff for me, because, while I can usually read legal documents well enough to get the gist, as soon it gets into the case law — which is the whole meat of the argument — they’re speaking a language I don’t understand.

            Ok, granted, Gunderson must have been a “Level 1” in the tiering system, which was established by the Adam Walsh Act. (I think there should be a law against laws named for cute murdered kids. As sad as these cases are, they make for terrible legislation, in part because they’re such rare situations.)

            So a Level 1 in Minnesota doesn’t have to appear in the newspaper. I’m not sure that’s true in every state, but I think a case can still be made that even Level 1s suffer “stigma-plus.” They’re still subject to Megan’s Laws (another law named after a cute murdered kid — this needs to stop). But that means, despite confidentiality, they can still be arrested for living or traveling near any of the established “anti-pedophile zones.”

            And, in Gunderson’s case, having the cops show up and arrest you for failure to register is certainly a form of “branding.”

            The original idea for the registries, as established by the Jacob Wetterling Act (here we go again with the cute murdered kids!) was that the registries would be restricted entirely to those with a past history of child sexual abuse, and they would all be confidential, available only to law enforcement. It came about because, when Jacob Wetterling disappeared, the police had no idea where to look, and an argument can be made that such a registry might have helped them. There’s been recent progress in the Wetterling case, because there were a half a dozen similar cases in a nearby town, with a matching description and MO. Had the police known, they might have solved the case, or even been able to save Jacob Wetterling.

            Then Megan Kanka was murdered in New Jersey by someone who was already on the registry and that created a demand that everyone should know who was on the list. Which sounds good in theory. No one wants the guy who murdered Megan Kanka for a neighbor. Then the Dru Sjodin Act (STOP!!!!!) has made the registries not only public, but nationally public.

            But the whole program has grown into an uncontrollable beast that can’t even accomplish it’s original purpose. Dru Sjodin was also murdered by someone on the registry and the police tried to use the registry to find him, but by then the registry in Minnesota had grown to 90,000 people. Good luck. They did eventually catch the guy, but not because of the registry.

            It’s now actually defeating its original purpose. But every state wants to add “just one more” offense to their registry requirements, usually in response to some rare, bizarre crime. So now you can order a map from any number of vendors, and discover that you have half a dozen “child sex offenders” living near you, most of whom are probably neither pedophiles nor sex offenders….but who’s counting?

            Registration is clearly a criminal penalty. We either need to subject them to same process as criminal penalties or, better yet, just abolish the damn things. They’re a threat to public safety by distracting the public from the real threat. For every Jacob Wetterling, Megan Kanka, or Adam Walsh, there are thousands of kids abducted, sexually abused, or murdered by people known to them — usually family members. So a map with the true statistical threat to your kids would be a photo of your own house.


              • Jessie

                Oh, Jesus….if they keep this up, legislative sessions are going to sound like kindergarten roll calls.

                And how exactly did the mother not know that the boyfriend was on parole? Convictions are public record. If she didn’t look to see if he had a criminal record, chances are slim she would have checked the registry. The notification requirements involve publishing in the newspaper of record and notifying your immediate neighbors. They don’t tell everybody you go out on a date with.

                Really, I would have somewhat less objection to these registries if they required a conviction first. It would be kinda redundant, since most aspects of registration are already covered under probation and parole requirements. But….ok….I can see the value in letting the neighbors know when someone has moved in who’s on parole for throwing babies against the wall.

                But the whole point of the registry is that you don’t have to be convicted to wind up on it. All you have to be is accused. You can go to a jury trial and be actively acquitted of the offense, and yet you still have to register. That’s my biggest gripe.

                And there isn’t a damn thing to stop prosecutors from tacking a registration-required offense onto virtually any case, so that, as long as they get a conviction on any of the charges, that person will wind up a sex offender.

                I’m going to propose a law to put a stop to all of this! I’ll call it the Ice Cream and Puppies Act.


  2. I had to LOL at these comments, I mean if we are going to “scarlet letter” drug abusers, why not go all the way. My husband would greatly benefit from a “sex workers” list. (jk honey I lubs you)


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