DEVELOPMENT OF THE DUE PROCESS PRINCIPLE IN THE UNITED STATES

1. The 14th Amendment as an Incorporation Clause

The original U.S. Constitution of 1787 had no provisions on constitutional rights. Hence, ten amendments, including the 5th Amendment, were added to the U.S.

The 14th Amendment, added to the U.S. Constitution in 1868, solved this problem; the state became the object against whom rights could be asserted by prescribing that no state could deprive life, liberty or property without due process of law. And by incorporating constitutional rights in the Bill of Rights into the term �liberty,’ in the 14th Amendment, many constitutional rights in the Bill of Rights came to apply to the state government as well as federal government. In this sense, the due process clause in the 14th Amendment has been called �the Incorporation Clause’ (Nowak and Rotunda 2000: 368-70).

When understanding the due process clause as demanding of the state and federal government �fundamental fairness’, in their behaviours we can see both substantive and the procedural demands.

2. Birth and Development of Substantive Due Process

Due process in substantive matters essentially means that states and federal government should not be allowed to take certain actions even though proce­dures are fair and the Constitution does not contain a specific prohibition against the activity. The idea of natural rights informs the thinking that there exists a nest in the due process clause where �fundamental rights’ exist which a state or the federal government cannot restrict without the logic of higher justifications. The fatal weakness of substantive due process is its indetermi­nateness.

A. Regulations on the economy and social welfare

In its early years, the notion of substantive due process was developed within the sphere of economic rights. For this reason, freedom of contract was derived from substantive due process like in the Lochner case^[390] in 1905. Many regulatory laws on the economy and social welfare were declared unconstitu­tional in that they infringed upon freedom of contract stemming from substan­tive due process. But, starting in the mid-1930s, the U.S. Supreme Court started to apply a �mere rational basis’ standard to the regulatory laws on the economy and social welfare and declared the regulatory laws on the economy and social welfare constitutional as long as they were minimally rational.

B. Non-economic regulations concerning fundamental rights

When regulations by the federal or state governments restrict fundamental rights in a non-economic area, the U.S. Supreme Court has adopted a strict scrutiny test of constitutionality. To pass the strict scrutiny test, the aim of the regulation should be �compelling’ and the regulation should be necessary to accomplish the compelling governmental interest. The government has the burden of poof in showing that the regulation is constitutional.

The fundamental rights that derive from substantive due process principles relates to the right of privacy. The right to use contraceptive measures^[391]and the right of abortion^[392] belong to this category. Rights related to family life, such as the right to live together^[393] and the right to educate one’s children,^[394] are usually fundamental rights. And certain newly-emerging rights including the right to die,^[395] the right to decline unwanted medical procedures and the right to read^[396] belong to the category of �fundamental rights’ stemming from substantive due process.

3. The Birth and Development of Procedural Due Process

Procedural due process refers to the notion that the government should behave according to proper and fair procedures in depriving any person of life, liberty or property.

As for the first step, the U.S. Supreme Court has held that physical liberty, the right to drive, right of occupation, and the right to the care of one’s baby belong to �liberty’ in the due process clause while the interest to maintain good reputation does not.^[397] As to �property’ in the due process clause, the Court declared welfare grant-in-aid^[398] and certain jobs^[399] as well as conventional prop­erty belong to �property.’

As to the second step, in deciding what process is due, the criteria could be different depending on whether the procedure at issue is a judicial process or a non-judicial process. When a person is one of the parties in ajudicial process, various procedural protections are prescribed in the Constitution including the right to a hearing, the right to call witnesses, the right to coun­sel, the right to a fair and objective trial and the right to an appeal. At this time, except for the due process clause, additional procedural protection devices are supplied by other constitutional provisions including the right to jury trial, the right to confront a witness against oneself and the right to have the assistance of counsel for the purposes of defending against criminal prosecution. When it comes to non-judicial processes, the government does not need to supply the various procedural protections constitutionally required in judicial processes. The Court employs a balancing test when a person alleges that certain proce­dural protections are required in specific contexts. At this stage, the private interest of the person in having the procedural protection and the governmen­tal interest in not having additional burdens from being required to supply such procedural protections are balanced.^[400]

III.