(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.