Click for Bill of Rights' 5th Amendment containing "Due Process"
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\2\Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922). \3\Text and commentary on this chapter may be found in W. McKechnie, Magna Carta--A Commentary on the Great Charter of King John 375-95 (Glasgow, 2d rev. ed. 1914). The chapter became chapter 29 in the Third Reissue of Henry III in 1225. Id. at 504, and see 139-59. As expanded, it read: ``No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land.'' See also J. Holt, Magna Carta 226-29 (Cambridge: 1965). The 1225 reissue also added to chapter 29 the language of chapter 40 of the original text: ``To no one will we sell, to no one will we deny or delay right or justice.'' This 1225 reissue became the standard text thereafter. \4\28 Edw. III, c. 3. See F. Thompson, Magna Carta--Its Role in the Making of the English Constitution, 1300-1629, 86-97 (1948), recounting several statutory reconfirmations. Note that the limitation of ``free man'' had given way to the all-inclusive delineation. \5\W. McKechnie, Magna Carta--A Commentary on the Great Charter of King John (Glasgow: 2d rev. ed. 1914); J. Holt, Magna Carta (Cambridge: 1965). \6\F. Thompson, Magna Carta--Its Role in the Making of the English Constitution, 1300-1629 (Minneapolis: 1948). \7\Sir Edward Coke, Institutes of the Laws of England, Part II, 50-51 (London: 1641). For a review of the influence of Magna Carta and Coke on the colonies and the new nation, see, e.g., A. Howard, The Road from Runnymede--Magna Carta and Constitutionalism in America (1968). --------------------------------------------------------------------------- The term ``law of the land'' was early the preferred expression in colonial charters and declarations of rights, which gave way to the term ``due process of law,'' although some state constitutions continued to employ both terms. Whichever phraseology was used, the expression seems generally to have occurred in close association with precise safeguards of accused persons, but, as is true of the Fifth Amendment here under consideration, the provision also suggests some limitations on substance because of its association with the guarantee of just compensation upon the taking of private property for public use.\8\ \8\The 1776 Constitution of Maryland, for example, in its declaration of rights, used the language of Magna Carta including the ``law of the land'' phrase in a separate article, 3 F. Thorpe, The Federal and State Constitutions, H. Doc. No. 357, 59th Congress, 2d Sess. 1688 (1909), whereas Virginia used the clause in a section of guarantees of procedural rights in criminal cases. 7 id. at 3813. New York in its constitution of 1821 was the first State to pick up ``due process of law'' from the United States Constitution. 5 id. at 2648. --------------------------------------------------------------------------- Scope of the Guaranty.--Standing by itself, the phrase ``due process'' would seem to refer solely and simply to procedure, to process in court, and therefore to be so limited that ``due process of law'' would be what the legislative branch enacted it to be. But that is not the interpretation which has been placed on the term. ``It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress [[Page 1345]] free to make any process `due process of law' by its mere will.''\9\ All persons within the territory of the United States are entitled to its protection, including corporations,\10\ aliens,\11\ and presumptively citizens seeking readmission to the United States,\12\ but States as such are not so entitled.\13\ It is effective in the District of Columbia\14\ and in territories which are part of the United States,\15\ but it does not apply of its own force to unincorporated territories.\16\ Nor does it reach enemy alien belligerents (note the three simultaneous conditions...Dad) tried by military tribunals outside the territorial jurisdiction of the United States.\17\ \9\Murray's Lessee v. Hoboken Land and Improvement Co. 59 U.S. (18 How.) 272, 276 (1856). Webster had made the argument as counsel in Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518-82 (1819). And see Chief Justice Shaw's opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857). \10\Sinking Fund Cases, 99 U.S. 700, 719 (1879). \11\Wong Wing v. United States, 163 U.S. 228, 238 (1896). \12\United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927). \13\South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966). \14\Wight v. Davidson, 181 U.S. 371, 384 (1901). \15\Lovato v. New Mexico, 242 U.S. 199, 201 (1916). \16\Public Utility Comm'rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920). \17\Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1 (1946). Justices Rutledge and Murphy in the latter case argued that the due process clause applies to every human being [and I too think all God's children are entitled to "due process" in the spirit of the Constitution and the Declaration of Independence, Dad], including enemy belligerents. |