Academic journal article Brigham Young University Law Review

Take the Fifth . . . Please!: The Original Insignificance of the Fifth Amendment's Due Process of Law Clause

Academic journal article Brigham Young University Law Review

Take the Fifth . . . Please!: The Original Insignificance of the Fifth Amendment's Due Process of Law Clause

Article excerpt

I. introduction

The Due Process of Law Clauses of the Fifth and Fourteenth Amendments appear to pose some vexing interpretative problems for constitutional originalists.1 Initially, there is the question whether the two clauses, enacted seventy-seven years apart, have the same meaning or whether each provision calls for a distinct interpretative exercise.2 Focusing solely for the moment on the text of the Fifth Amendment's Due Process of Law Clause, which says that no person shall "be deprived of life, liberty, or property, without due process of law,"3 one immediately encounters tricky questions about the meaning of the phrase "life, liberty, or property." Does the word "life" bear the relatively expansive meaning given by William Blackstone of "a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation,"4 or does it implicate only capital punishment or other existence-ending governmental actions? Does "liberty" mean anything more than freedom of locomotion5 and, if so, how much more? Does "property" refer to land, land plus chattels, all interests recognized as property by general common law in 1791, or interests that can include expectations of future government benefits?6 There are also questions about the meaning of the phrase "without due process of law. " Does "without due process of law" invoke only long- established prohibitions on rights-affecting executive or judicial action undertaken without legal authority7 or proper form?8 Or does it mean whatever procedures are fair under all of the facts and circumstances of a particular case,9 or the product of some kind of narrow, utilitarian calculus,10 or something more substantive that serves as a font of protection against even prospective legislation?11 One might also wonder what it means to be "deprived" of life, liberty, or property. Does this term connote some kind of intentionality, or will mere negligence suffice for a deprivation?12 Finally, one might ask who or what counts as a "person" protected by the clause. Does that term extend to juridical persons such as corporations, to human beings who are not yet born, or both?13

These questions are vitally important for anyone interested in realworld doctrine. They might well be important for understanding the original interpretative meaning14 of the Due Process of Law Clause of the Fourteenth Amendment. But to ask those questions in the context of the Fifth Amendment's Due Process of Law Clause is fruitless for the simple reason that the clause itself is irrelevant to the Constitution's original interpretative meaning.15 The Fifth Amendment's Due Process of Law Clause adds virtually nothing to, and subtracts nothing from, the meaning of the Constitution of 1788. As with most provisions of the Bill of Rights, it is an "exclamation point"16 that highlights certain legal norms but does not create or change them.

This claim should not be at all startling. The Federalists in 1787 consistently maintained that a bill of rights more extensive than the one found in Article I, Section 9 of the original constitutional text was unnecessary and would only give rise to false implications about the scope of national power because the Constitution of 1788 gave institutions of the national government no power to violate the various rights specified in the amendments.17 To them, the Bill of Rights was redundant with limitations on national powers already found in the text and structure of the Constitution. To be sure, a great many Antifederalists strongly disagreed, and ultimately disagreed successfully, about the need for a more robust bill of rights, but their insistence on the importance of an additional bill of rights was based largely on an exaggerated view of the powers of Congress, especially under the Necessary and Proper Clause, that does not withstand close scrutiny.18 The Antifederalists were right about a great many things, quite possibly including the wisdom of having a national government in the first place, but the Federalists were right about this interpretative point. …

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