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Both Republicans and Democrats support "Internet freedom" in their own way. Great -- but we have to be careful not to let partisanship define the debate.

With the 2012 election season now in full swing, the Republicans and Democrats have each released their official party platforms, those pandering documents that vaguely outline the parties’ positions on everything from health care to foreign wars. But this year, both platforms included one topic that has never before made an appearance as a standalone provision: Internet freedom.

The inclusion of Internet freedom as a primary point of concern for the two leading U.S. political parties follows a year of unprecedented activism on behalf of the Web. The famous Internet blackout on January 18 against the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) kicked off a string of protests backed by millions of newly invigorated citizens. Intense battles against the Cyber Intelligence Sharing and Protection Act (CIPSA), and the contentious U.S.-backed Anti-Counterfeiting Trade Agreement (ACTA) followed, as did backlash against various cybersecurity bills. And a fight over the increasingly hated Trans-Pacific Partnership Agreement (TPP) is brewing hotter at this very moment.

It is this activism that has pushed Internet freedom to the forefront of American politics — a position that should encourage Washington politicians to place Internet-related issues even higher on their agendas, and citizens to stay informed and active in the process. In many ways, this is good for the Web, and for the people and businesses that rely upon it.Us vs. Them

Unfortunately, the addition of “Internet freedom” on the political platforms also has the ill effect of further politicizing the Internet, a transition that could lock Internet issues into the Us vs. Them impasse that plagues so many issues important to our country and the world.

At the moment, here’s how this fight breaks down: Republicans define “Internet freedom” as freedom from government control. (Surprise, surprise, I know…) Specifically, they oppose regulations like the Federal Communications Commission’s Net neutrality rules. Not only do they believe that Net neutrality infringes upon businesses’ ability to innovate, some on the Right assert that Net neutrality — which prohibits Internet companies from discriminating against certain Web content or access to content — violates companies’ First Amendment right to free speech.

Verizon recently filed a brief in federal court asserting exactly this. In its brief, Verizon stated that the FCC’s Net neutrality rules are unconstitutional because “broadband networks are the modern-day microphone by which their owners engage in First Amendment speech.” A number of right-wing advocacy groups, including The Free State Foundation, TechFreedom, the Competitive Enterprise Institute, and the Cato Institute, have filed an amicus brief in support of Verizon, with the goal of having FCC Net neutrality rules thrown out by the court.

So that’s one side. In the other corner we have the Democrats, most of whom strongly support Net neutrality principles on the basis that they protect Web users and small businesses from the greedy wrath of corporate giants. Interestingly, the 2012 Democratic National Platform makes no direct mention of Net neutrality. Instead, it declares support for the things Net neutrality supporters believe the principles achieve.

“President Obama is strongly committed to protecting an open Internet that fosters investment, innovation, creativity, consumer choice, and free speech, unfettered by censorship or undue violations of privacy,” the platform reads. The Democrats also tout their commitment “to preserve the Internet as a platform for commerce, debate, learning, and innovation in the 21st century.”

In other words: Democrats support Net neutrality even if they don’t say so explicitly. That’s what “protecting an open Internet that fosters investment, innovation, creativity, consumer choice, and free speech” means, after all.Fateful split

Battles like the one over Net neutrality are entirely inevitable. But I fear that the dividing line over this issue will only lead to further partisanship over all aspects of Internet regulation (or deregulation) — partisanship that could leak deep into the cracks of the American electorate, and divide Web users in the same way that issues like abortion and same-sex marriage divide us now.

We cannot let this ideological split define the debate over the open Internet. The reason the protests against SOPA/PIPA were so monumentally successful is that we, the Web users, were firmly united in opposition to these poorly crafted pieces of legislation. (Not to mention the support added by companies like Google, which, incidentally, has a complicated relationship with Net neutrality.) But if we let the same petty bipartisanship rule over our senses when it comes to Internet issues, such uniformity will become increasingly unstable and eventually fall apart. Last word

As it stands now, the debate over what “Internet freedom” means remains fluid — we are able to support or oppose each new piece of legislation or other government action based purely on merit, not on meaningless factors like which political party supports this or that bill. But this balance has already begun to shift towards a more partisan dynamic, one that makes clear-minded analysis nearly impossible.

I am pleased with the inclusion of “Internet freedom” on the party platforms for the sole reason that it means we are doing something right — that we have Washington’s attention. I fear, however, that by getting its attention, we have ushered in the end of the “the Internet” as a solid, pragmatic force against the creaky, entrenched powers-that-be.


The right, guaranteed by the First Amendment to the U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.

Democracies have long grappled with the issue of the limits, if any, to place on the expression of ideas and beliefs. The dilemma dates back at least to ancient Greece, when the Athenians, who cherished individual freedom, nevertheless prosecuted Socrates for his teachings, claiming that he had corrupted young people and insulted the gods.

The Framers of the Constitution guaranteed freedom of speech and expression to the citizens of the United States with the First Amendment, which reads, in part, "Congress shall make no law … abridging the freedom of speech." Almost since the adoption of the Bill of Rights, however, the judiciary has struggled to define speech and expression and the extent to which freedom of speech should be protected. Some, like Justice hugo l. black, have believed that freedom of speech is absolute. But most jurists, along with most U.S. citizens, agree with Justice oliver wendell holmes jr., who felt that the Constitution allows some restrictions on speech under certain circumstances. To illustrate this point, Holmes wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic" (schenck v. united states, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]).

During the two centuries since the adoption of the First Amendment, the U.S. Supreme Court has held that some types of speech or expression may be regulated. At the same time, the Court has granted protection to some areas of expression that the Framers clearly had not contemplated.Public Forum Regulation

When the government attempts to regulate the exercise of speech rights in traditional public forums, such as parks or public sidewalks, the U.S. Supreme Court examines whether the regulation restricts the content of the speech or merely regulates the time, manner, and place in which the speech is delivered.

If the law regulates the content of the expression, it must serve a compelling state interest and must be narrowly written to achieve that interest (Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 [1983]). Restrictions on speech in a public forum also may be upheld if the expressive activity being regulated is of a type that is not entitled to full First Amendment protection, such as Obscenity.

Laws that regulate the time, manner, and place, but not content, of speech in a public forum receive less scrutiny by the Court than do laws that restrict the content of expression. These so-called content-neutral laws are permissible if they serve a significant government interest and allow ample alternative channels of communication (see Perry). It is not necessary that a content-neutral law be the least restrictive alternative, but only that the government's interest would be achieved less effectively without it (Ward v. Rock against Racism, 491 U.S. 781, 109S. Ct. 2746, 105 L. Ed. 2d 661 [1989]).

An important distinction is drawn between public premises that serve as traditional public forums and those that constitute limited public forums. For example, state fair grounds are public premises that have not traditionally served as public forums. The government may impose more restrictions on free speech in limited public forums than in traditional public forums. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981), the Court upheld regulations limiting the sale or distribution of religious materials to fixed locations on state fair grounds.

The Court reaffirmed in Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S. Ct. 775, 151 L. Ed.2d 783 (2002) that local governments do not violate the First Amendment when they require the obtaining of a permit before individuals can hold large-scale rally events in public parks. In this case, the Chicago Park District denied a rally permit to a group that had sought to hold a "Hempfest." The park district denied the permit because of violations of park rules at previous events run by the organizers. The group challenged the denial, arguing that the park district could use its unfettered discretionary power to deny permits to those who held unpopular or controversial political views, such as support for the legalization of marijuana. The U.S. Supreme Court held that the park district's ordinance was a constitutionally permissible "content-neutral" regulation of time, manner, and place. It was directed toward all activity in a public park, not just toward communicative or political activity. It did not constitute subject-matter Censorship

in any way. The Court explained that the park district's object was to coordinate multiple uses of limited space; to assure preservation of park facilities; to prevent dangerous, unlawful, or impermissible uses; and to assure financial accountability for damages caused by an event.

Although it seems reasonable to assume that public premises owned and operated by the government are public forums, some are not. In Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17L. Ed. 2d 149 (1966), the U.S. Supreme Court upheld the Trespass conviction of students who demonstrated on the grounds of a jail. Although jailhouse grounds are public property, they have not been used traditionally as public forums: "No less so than a private owner of property, the state has the power to preserve the property under its control for the use to which it is lawfully dedicated." Later cases challenging restricted access to public premises focused on whether the government, in creating the premises, had intended to create a public forum. In United States v. Kokinda, 497 U.S. 720, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990), the Court upheld a postal-service regulation that bars the solicitation of contributions on a post office's sidewalk, because that sidewalk lacked the characteristics of a general public sidewalk. Similarly, it

declared an airport terminal to be a nonpublic forum because "the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity" (International Society for Krishna Consciousness v. Lee, 505 U.S. 672, 112 S. Ct. 2701, 120 L. Ed. 2d 541 [1992]).

When private property rights conflict with the public-forum doctrine, the Court examines whether the regulation in question is narrowly tailored to serve a significant government interest. A law may not prohibit all canvassing or solicitation of, or distribution of handbills to, homeowners in a residential neighborhood, because a public street is a traditional public forum. However, it may limit specific types of speech activity that target particular individuals. In Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988), the Court upheld an ordinance that prohibited the picketing of individual residences. The law had been narrowly drawn to serve the government's interest in precluding the picketing of captive householders, and allowed picketers ample alternative means of expression.Inciting, Provocative, or Offensive Speech

Laws that limit inciting or provocative speech, often called fighting words, or offensive expressions such as Pornography, are subject to Strict Scrutiny. It is well established that the government may impose content regulations on certain categories of expression that do not merit First Amendment protection. To illustrate this point, the Court stated in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942),"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise constitutional problems."

With the increase of activity in cyberspace, individuals can distribute questionable speech throughout the U.S. and the world. In Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002), a federal appeals court ruled that an anti-abortion web site was not protected by the First Amendment. The web site posted photos, names, addresses, and other information pertaining to Abortion providers, their family members, and others who were perceived as supporting abortion rights. Although neither the site nor the posters made explicit threats against the abortion providers, violence at clinics that provided abortions had followed poster distribution in the past. Planned Parenthood sued the group under the Freedom of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C. § 248, and other laws. The trial judge instructed the jury that if the defendants' statements were "true threats," the First Amendment would not protect them. The jury awarded the plaintiff a multimillion-dollar verdict. The Ninth Circuit stated that a jury could conclude that the postings constituted a true threat under FACE, which removed any First Amendment protection for the defendants.

The Court has also upheld laws that regulate speech activity if those laws do not limit the content of speech and impose only an indirect burden on freedom of speech. In such cases, the Court applies a less stringent test and balances the individual's free speech interests against the government's interest that is furthered by the law in question. In O'Brien v. United States, 393U.S. 900, 89 S. Ct. 63, 21 L. Ed. 2d 188 (1968), the Court held that a statute prohibiting the destruction of draft cards did not violate the First Amendment, because the government's interest in maintaining a viable selective-service pool outweighed the statute's incidental infringement of free expression.

Since the 1980s, a number of laws have been passed that attempt to regulate or ban "hate speech," which is defined as utterances, displays, or expressions of racial, religious, or sexual bias. The U.S. Supreme Court has generally invalidated such laws on the ground that they infringe First Amendment rights. In R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992), the Court invalidated the city of St. Paul's hate-crime ordinance, ruling that it unconstitutionally infringed free speech. The defendant in that case had been prosecuted for burning a cross on the lawn of an African-American family's residence.

The Minnesota Supreme Court held that the ordinance was limited to restricting conduct that amounted to Chaplinksky "fighting words." Therefore, the ordinance was not impermissibly content-based because it was "narrowly tailored" to further the "compelling governmental interest in protecting the community against bias-motivated threats to public safety and order." The U.S. Supreme Court disagreed. Justice Antonin Scalia, in his majority opinion, wrote that, even assuming that the cross burning was proscribable under the "fighting words" doctrine, the ordinance was, on its face, unconstitutional. It violated the First Amendment because it prohibited "otherwise permitted speech solely on the basis of the subjects the speech addresses." Scalia agreed that the government may constitutionally proscribe content such as libel, but that it may not proscribe only libel that is critical of the government. In Scalia's view, the unprotected features of "fighting words" are their "nonspeech" element of communication. Thus, fighting words are like a noisy sound truck: each is a mode of speech, and both can be used to convey an idea, but neither has a claim on the First Amendment. The government cannot, however, regulate fighting words or a sound truck based on "hostility-or favoritism-towards the underlying message expressed."

In addition, the ordinance was not over-broad but underinclusive. The content limitation was impermissible because it displayed "the city council's special hostility towards the particular biases thus singled out." An ordinance not restricted "to the favored topics" would have the same effect the city desired, but without the discrimination against unpopular views. Justice Scalia also noted that the city could have prosecuted the defendant under traditional Criminal Law statutes, including Arson, trespass, and terroristic threats. In his view, the city had other means to address the problem "without adding the First Amendment to the fire."

This decision did not end the debate over hate crimes. The Court took up the issue again in Virginia v. Black, 538 U.S. 343, 123 S. Ct.1536. 155 L. Ed.2d 535 (2003). This case also involved a cross burning aimed at terrorizing an African-American family. A Virginia criminal statute had outlawed cross burning "on the property of another, a highway or other public place …with the intent of intimidating any person or group." In a 6-3 decision, the Court upheld the statute. It emphasized that the First Amendment would protect some types of cross burnings, such as one held at a political rally. However, when the cross burning was targeted at individuals for the purposes of criminal intimidation, freedom of speech would not protect the cross burners.

Like fighting words, materials that are judged obscene are not protected by the First Amendment. The three-part Miller test stands as the yardstick for differentiating material that is merely offensive and therefore protected by the First Amendment, from that which is legally obscene and therefore subject to restriction (miller v. california, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]). The Miller test determines that material is obscene if (1) the average person, applying contemporary community standards, would find that it appeals to shameful or morbid sexual interests; (2) it depicts or describes patently offensive sexual conduct; and (3) it lacks serious literary, artistic, political, or scientific value.

The Seventh Circuit Court of Appeals ruled in Kendrick v. American Amusement Machine Association, 244 F.3d 572 (7th Cir. 2001) that a city ordinance that prohibited minors from playing violent or sexually explicit video arcade games was unconstitutional. The court noted that the city had not sought to regulate video games because they were "offensive" under Miller. Rather, the ordinance premised its restriction on the belief that violent fantasy video games led to real-world harm. The appeals court found no real difference between the content of the allegedly "violent" video games and generally available, unrestricted literature that depicted the same level of violence. They were both examples of "a children's world of violent adventures." The court, therefore, found that the ordinance impermissibly restricted minors' freedom of expression without any offsetting justification.Prior Restraint

The Court uses a stringent standard when it evaluates statutes that impose a Prior Restraint on speech. The test that is most frequently employed asks whether the prohibited activity poses a Clear and Present Danger of resulting in damage to a legitimate government interest. Most often, the clear-and-present-danger doctrine has applied to prior restraints on the publication of materials thought to threaten national security. This test was first expressed by Justice Holmes in the Schenck case. Charles T. Schenck had been charged with violating the Espionage Act (Tit. 1, §§ 3, 4 [Comp. St. 1918, §§ 10212c, 10212d]) by distributing pamphlets that urged insubordination among members of the military. The Court held that his activities created "a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." The government's interest in maintaining national security and preventing dissension among the troops outweighed Schenck's interest in free speech.

The clear-and-present-danger test was extended during the 1950s, when widespread fear of Communism led to the passage of the Smith Act, 18 U.S.C.A. § 2385, which prohibited advocating the overthrow of the government. The act was challenged as a prior restraint on speech. It was upheld by the U.S. Supreme Court, which stated that the clear-and-present-danger test does not require the government to prove that a threat is imminent or that a plot probably would be successful (Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137[1951]).

The Dennis decision was criticized as weakening the clear-and-present-danger test and allowing the government too much freedom to restrict speech. These results were remedied somewhat in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969), in which the Court invalidated a statute that punished the advocacy of violence in industrial disputes. The Court held that the government cannot forbid the advocacy of the use of force unless that advocacy is directed to inciting imminent illegal activity and is likely to succeed.Expressive Conduct

In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), Justice robert h. jackson wrote that symbols are "a short cut from mind to mind." Expressive conduct or Symbolic Speech involves communicative conduct that is the behavioral equivalent of speech. The conduct itself is the idea or message. Some expressive conduct is the equivalent of speech and is protected by the First Amendment.

In tinker v. des moines independent community school district, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), the U.S. Supreme Court held that it was unconstitutional to suspend high-school students for wearing black armbands to protest the Vietnam War, because their conduct was "akin to pure speech" and did not interfere with the work of the school or the rights of other students.

In Good News Club v. Milford Central School, 533 U.S. 98, 121 S. Ct. 2093, 150 L. Ed.2d 151 (2001), the U.S. Supreme Court ruled that a private Christian organization could not be denied use of the public school space for after-school activities. The Court emphasized that the Establishment Clause could not serve as a barrier to the organization's exercise of its free speech rights. Justice Clarence Thomas, in his majority opinion, addressed the freedom-of-speech argument. He noted that the school was a limited public forum and that the state therefore was not required to permit persons "to engage in every type of speech." However, the state's ability to restrict speech was not unlimited. In addition, the state could not discriminate against speech on the basis of viewpoint. Justice Thomas wrote that the school district decision had unlawfully imposed this requirement. He pointed to recent Court decisions that had forbidden states to prevent religious groups from using public facilities or to receive funding for an undergraduate organization.

Statutes that prohibit the desecration of the U.S. flag have been found to restrict free expression unconstitutionally. In texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), the Court overturned Gregory L. Johnson's conviction for burning a U.S. flag during a demonstration. Johnson's actions were communicative conduct that warranted First Amendment protection, even though they were repugnant to many people. Similarly, in United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990), the Court struck down the federal Flag Protection Act of 1989, 103 Stat. 777, 18 U.S.C.A. § 700, stating that the government's interest in passing the act had been a desire to suppress free expression and the content of the message that the act of flag burning conveys.

The U.S. Supreme Court has generally struck down prohibitions on nudity and other erotic, but nonobscene, expressive conduct. However, in Barnes v. Glen Theatre, 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991), the Court upheld a ban on totally nude dancing, on the ground that it was part of a general ban on public nudity. While recognizing that nude dancing generally has been considered protected expressive conduct, the justices pointed out that such activity is only marginally within the perimeter of First Amendment protection.

In City of Erie v. Pap's A. M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000), the U.S. Supreme Court upheld a local Zoning ordinance that banned nude-dancing clubs within the city. It found that freedom of speech had not been unconstitutionally restricted because the ordinance did not ban the expressive conduct of nude dancing but only the means for expressing it within the city. It found that the city had good grounds for banning nude-dancing clubs; these were secondary effects on the community rather than the dancing itself. Therefore, the city had the authority to restrict the location of such clubs.Commercial Speech

Commercial speech, usually in the form of advertising, enjoys some First Amendment protection, but not to the same degree as that which is given to noncommercial forms of expression. Generally, the First Amendment protects commercial speech that is not false or misleading and that does not advertise illegal or harmful activity. Commercial speech may be restricted only to further a substantial government interest and only if the restriction actually furthers that interest. In Central Hudson Gas & Electric Co. v. Public Service Commission, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980), the U.S. Supreme Court held that a statute banning promotional advertising by Public Utilities was unconstitutional. That case set forth a "general scheme for assessing government restrictions on commercial speech." Commercial speech will be protected by the First Amendment if (1) it concerns lawful activity and is not misleading; (2) the asserted government interest is not substantial; (3) the regulation does not directly advance the asserted governmental interest; and (4) the regulation is more extensive than is necessary to serve that interest. The U.S. Supreme Court has struck down bans on drug advertising, (Thompson v. Western States Medical Center,, 535 U.S. 357, 122 S. Ct. 1497, 152 L. Ed. 2d 563 (2002) and tobacco advertising, Lorillard Tobacco Corp. v. Reilly,, 533 U.S. 525, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001), using this test.Defamation and Privacy

In new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the U.S. Supreme Court declared that the First Amendment protects open and robust debate on public issues, even when such debate includes "vehement, caustic, unpleasantly sharp attacks on government and public officials." In Sullivan, a public official claimed that allegations about him that had appeared in the New York Times were false, and he sued the newspaper for libel. The Court balanced the plaintiff's interest in preserving his reputation against the public's interest in freedom of expression, particularly in the area of political debate. It decided that, in order to recover damages, a public official must prove actual malice, which is knowledge that the statements were false or that they were made with reckless disregard of whether they were false.

Where the plaintiff in a Defamation action is a private citizen who is not in the public eye, the law extends a lesser degree of constitutional protection to the statements at issue. Public figures voluntarily place themselves in positions that invite close scrutiny, whereas private citizens have a greater interest in protecting their reputation. A private citizen's reputational and privacy interests tend to outweigh free speech considerations and therefore deserve greater protection from the courts (see Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 [1974]).

Washington State Court Rules: Code of Judicial Conduct.

Preamble
Terminology
Application of the Code of Judicial Conduct
Table of Canons
Canon 1 Judges Shall Uphold the Integrity and Independence of the Judiciary
Canon 2 Judges Should Avoid Impropriety and the Appearance of Impropriety in All Their Activities
Canon 3 Judges Shall Perform the Duties of Their Office Impartially and Diligently
Canon 4 Judges May Engage in Activities To Improve the Law, the Legal System and the Administration of Justice
Canon 5 Judges Shall Regulate Their Extrajudicial Activities to Minimize the Risk of Conflict With Their Judicial Duties
Canon 6 Judges Shall Regularly File Reports of Compensation Received for Quasi-Judicial and Extrajudicial Activities
Canon 7 Judges Shall Refrain From Political Activity Inappropriate to Their Judicial Office
 


Model Code of Judicial ConductCanon 32A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY

A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge’s other activities. The judge’s judicial duties include all the duties of the judge’s office prescribed by law*. In the performance of these duties, the following standards apply..

B. Adjudicative Responsibilities.

(1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required.

(2) A judge shall be faithful to the law* and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism.

(3) A judge shall require* order and decorum in proceedings before the judge.

(4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require* similar conduct of lawyers, and of staff, court officials and others subject to the judge’s direction and control.

Commentary:

The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate.

(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge’s direction and control to do so.

Commentary:

A judge must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment and must require the same standard of conduct of others subject to the judge’s direction and control.

A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial.

(6) A judge shall require* lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others. This Section 3B(6) does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, or other similar factors, are issues in the proceeding.

(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law*. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:

(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:

(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

(b) A judge may obtain the advice of a disinterested expert on the law* applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.

(c) A judge may consult with court personnel* whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.

(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.

(e) A judge may initiate or consider any ex parte communications when expressly authorized by law* to do so.

Commentary:

The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted.

To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge.

Whenever presence of a party or notice to a party is required by Section 3B(7), it is the party’s lawyer, or if the party is unrepresented the party, who is to be present or to whom notice is to be given.

An appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.

Certain ex parte communication is approved by Section 3B(7) to facilitate scheduling and other administrative purposes and to accommodate emergencies. In general, however, a judge must discourage ex parte communication and allow it only if all the criteria stated in Section 3B(7) are clearly met. A judge must disclose to all parties all ex parte communications described in Sections 3B(7)(a) and 3B(7)(b) regarding a proceeding pending or impending before the judge.

A judge must not independently investigate facts in a case and must consider only the evidence presented.

A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.

A judge must make reasonable efforts, including the provision of appropriate supervision, to ensure that Section 3B(7) is not violated through law clerks or other personnel on the judge’s staff.

If communication between the trial judge and the appellate court with respect to a proceeding is permitted, a copy of any written communication or the substance of any oral communication should be provided to all parties.

(8) A judge shall dispose of all judicial matters promptly, efficiently and fairly.

Commentary:

In disposing of matters promptly, efficiently and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. Containing costs while preserving fundamental rights of parties also protects the interests of witnesses and the general public. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable delays and unnecessary costs. A judge should encourage and seek to facilitate settlement, but parties should not feel coerced into surrendering the right to have their controversy resolved by the courts.

Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to insist that court officials, litigants and their lawyers cooperate with the judge to that end.

(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. The judge shall require* similar abstention on the part of court personnel* subject to the judge’s direction and control. This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.

(10) A judge shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial* performance of the adjudicative duties of the office.

Commentary:

Sections 3B(9) and (10) restrictions on judicial speech are essential to the maintenance of the integrity, impartiality, and independence of the judiciary. A pending proceeding is one that has begun but not yet reached final disposition. An impending proceeding is one that is anticipated but not yet begun. The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition. Sections 3B(9) and (10) do not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity, but in cases such as a writ of mandamus where the judge is a litigant in an official capacity, the judge must not comment publicly. The conduct of lawyers relating to trial publicity is governed by [Rule 3.6 of the ABA Model Rules of Professional Conduct]. (Each jurisdiction should substitute an appropriate reference to its rule.)

(11) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community.

Commentary:

Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror’s ability to be fair and impartial in a subsequent case.

(12) A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information* acquired in a judicial capacity.

C. Administrative Responsibilities.

(1) A judge shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.

(2) A judge shall require* staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.

(3) A judge with supervisory authority for the judicial performance of other judges shall take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.

(4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.

Commentary:

Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers and guardians and personnel such as clerks, secretaries and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by Section 3C(4).

(5) A judge shall not appoint a lawyer to a position if the judge either knows that the lawyer has contributed more than [$       ] within the prior [     ] years to the judge's election campaign,3 or learns of such a contribution by means of a timely motion by a party or other person properly interested in the matter, unless

(a) the position is substantially uncompensated;

(b) the lawyer has been selected in rotation from a list of qualified and available lawyers compiled without regard to their having made political contributions; or

(c) the judge or another presiding or administrative judge affirmatively finds that no other lawyer is willing, competent and able to accept the position.

D. Disciplinary Responsibilities.

(1) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge* that another judge has committed a violation of this Code that raises a substantial question as to the other judge’s fitness for office shall inform the appropriate authority*.

(2) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct [substitute correct title if the applicable rules of lawyer conduct have a different title] should take appropriate action. A judge having knowledge* that a lawyer has committed a violation of the Rules of Professional Conduct [substitute correct title if the applicable rules of lawyer conduct have a different title] that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate authority*.

(3) Acts of a judge, in the discharge of disciplinary responsibilities, required or permitted by Sections 3D(1) and 3D(2) are part of a judge’s judicial duties and shall be absolutely privileged, and no civil action predicated thereon may be instituted against the judge.

Commentary:

Appropriate action may include direct communication with the judge or lawyer who has committed the violation, other direct action if available, and reporting the violation to the appropriate authority or other agency or body.

E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to instances where:

Commentary:

Under this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared, unless the disqualification was waived by the parties after disclosure by the judge.


A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.

By decisional law, the rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In the latter case, the judge must disclose on the record the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable.

(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge* of disputed evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;

Commentary:

A lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of Section 3E(1)(b); a judge formerly employed by a government agency, however, should disqualify himself or herself in a proceeding if the judge’s impartiality might reasonably be questioned because of such association.

(c) the judge knows* that he or she, individually or as a fiduciary, or the judge’s spouse, parent or child wherever residing, or any other member of the judge’s family residing in the judge’s household*, has an economic interest* in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis* interest that could be substantially affected by the proceeding;

(d) the judge or the judge’s spouse, or a person within the third degree of relationship* to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known* by the judge to have a more than de minimis* interest that could be substantially affected by the proceeding;

(iv) is to the judge’s knowledge* likely to be a material witness in the proceeding;

(e) the judge knows or learns by means of a timely motion that a party or a party's lawyer has within the previous [      ] year[s] made aggregate* contributions to the judge's campaign in an amount that is greater than [[ [$       ] for an individual or [$        ] for an entity] ]] [[is reasonable and appropriate for an individual or an entity]].4

(f) the judge, while a judge or a candidate* for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to

(i) an issue in the proceeding; or

(ii) the controversy in the proceeding.

Commentary:

The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that "the judge’s impartiality might reasonably be questioned" under Section 3E(1), or that the relative is known by the judge to have an interest in the law firm that could be "substantially affected by the outcome of the proceeding" under Section 3E(1)(d)(iii) may require the judge’s disqualification.

(2) A judge shall keep informed about the judge’s personal and fiduciary* economic interests*, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse and minor children residing in the judge’s household.

F. Remittal of Disqualification. A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

Commentary:

A remittal procedure provides the parties an opportunity to proceed without delay if they wish to waive the disqualification. To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule. A party may act through counsel if counsel represents on the record that the party has been consulted and consents. As a practical matter, a judge may wish to have all parties and their lawyers sign the remittal agreement.

 

2 Amended August 10, 1999, American Bar Association House of Delegates, Atlanta, Georgia, per Report 123.

3 This provision is meant to be applicable wherever judges are subject to public election; specific amount and time limitations, to be determined based on circumstances within the jurisdiction, should be inserted in the brackets.

4 This provision is meant to be applicable wherever judges are subject to public election. Jurisdictions that adopt specific dollar limits on contributions in section 5(C)(3) should adopt the same limits in section 3(E)(1)(e). Where specific dollar amounts determined by local circumstances are not used, the "reasonable and appropriate" language should be used.

Copyright Protection Copyright protection is automatic for any creative work the moment it is created and set down in a “tangible form of expression,” including a work that can only be read with the aid of a device such as an e-book reader. The copyright owner has the exclusive right to reproduce and distribute the e-book for public sale, rental or lending, or to make the book available for free. Without express permission, others cannot reproduce and distribute copies of the e-book. =========================  The Key Issues For 2014 Are ! Woman's Rights, Freedom of Speech,  Publisher Right's, Marriages Right's, Domestic Violence, Sexual Assault, Sex,  Mandatory Reporters, United States Constitution and Bill of Right's, Lovers, Court System !

Model Code of Judicial ConductPREAMBLE - TERMINOLOGY

PREAMBLE

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

The Code of Judicial Conduct is intended to establish standards for ethical conduct of judges. It consists of broad statements called Canons, specific rules set forth in Sections under each Canon, a Terminology Section, an Application Section and Commentary. The text of the Canons and the Sections, including the Terminology and Application Sections, is authoritative. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections. The Commentary is not intended as a statement of additional rules. When the text uses "shall" or "shall not," it is intended to impose binding obligations the violation of which can result in disciplinary action. When "should" or "should not" is used, the text is intended as hortatory and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined. When "may" is used, it denotes permissible discretion or, depending on the context, it refers to action that is not covered by specific proscriptions.

The Canons and Sections are rules of reason. They should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions.

The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through disciplinary agencies. It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.

The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them. It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system. See ABA Standards Relating to Judicial Discipline and Disability Retirement.*

The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges. They should also be governed in their judicial and personal conduct by general ethical standards. The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.

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TERMINOLOGY

Terms explained below are noted with an asterisk (*) in the Sections where they appear. In addition, the Sections where terms appear are referred to after the explanation of each term below.

"Aggregate" in relation to contributions for a candidate under Sections 3E(1)(e) and 5C(3) and (4) denotes not only contributions in cash or in kind made directly to a candidate's committee or treasurer, but also, except in retention elections, all contributions made indirectly with the understanding that they will be used to support the election of the candidate or to oppose the election of the candidate's opponent. See Sections 3E(1)(e), 5C(3) and 5C(4).

"Appropriate authority" denotes the authority with responsibility for initiation of disciplinary process with respect to the violation to be reported. See Sections 3D(1) and 3D(2).

"Candidate." A candidate is a person seeking selection for or retention in judicial office by election or appointment. A person becomes a candidate for judicial office as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, or authorizes solicitation or acceptance of contributions or support. The term "candidate" has the same meaning when applied to a judge seeking election or appointment to non-judicial office. See Preamble and Sections 5A, 5B, 5C and 5E.

"Continuing part-time judge." A continuing part-time judge is a judge who serves repeatedly on a part-time basis by election or under a continuing appointment, including a retired judge subject to recall who is permitted to practice law. See Application Section C.

"Court personnel" does not include the lawyers in a proceeding before a judge. See Sections 3B(7)(c) and 3B(9).

"De minimis" denotes an insignificant interest that could not raise reasonable question as to a judge’s impartiality. See Sections 3E(1)(c) and 3E(1)(d).

"Economic interest" denotes ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant in the affairs of a party, except that:

(i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;

(ii) service by a judge as an officer, director, advisor or other active participant in an educational, religious, charitable, fraternal or civic organization, or service by a judge’s spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization;

(iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest;

(iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities. See Sections 3E(1)(c) and 3E(2).

"Fiduciary" includes such relationships as executor, administrator, trustee, and guardian. See Sections 3E(2) and 4E.

"Impartiality" or "impartial" denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge. See Sections 2A, 3B(10), 3E(1), 5A(3)(a) and 5A(3)(d)(i).

"Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances. See Sections 3D, 3E(1), and 5A(3).

"Law" denotes court rules as well as statutes, constitutional provisions and decisional law. See Sections 2A, 3A, 3B(2), 3B(6), 4B, 4C, 4D(5), 4F, 4I, 5A(2), 5A(3), 5B(2), 5C(1), 5C(3) and 5D.

"Member of the candidate’s family" denotes a spouse, child, grandchild, parent, grandparent or other relative or person with whom the candidate maintains a close familial relationship. See Section 5A(3)(a).

"Member of the judge’s family" denotes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. See Sections 4D(3), 4E and 4G.

"Member of the judge’s family residing in the judge’s household" denotes any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge’s family, who resides in the judge’s household. See Sections 3E(1) and 4D(5).

"Nonpublic information" denotes information that, by law, is not available to the public. Nonpublic information may include but is not limited to: information that is sealed by statute or court order, impounded or communicated in camera; and information offered in grand jury proceedings, presentencing reports, dependency cases or psychiatric reports. See Section 3B(12).

"Periodic part-time judge." A periodic part-time judge is a judge who serves or expects to serve repeatedly on a part-time basis but under a separate appointment for each limited period of service or for each matter. See Application Section D.

"Political organization" denotes a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office. See Sections 5A(1), 5B(2) and 5C(1).

"Pro tempore part-time judge." A pro tempore part-time judge is a judge who serves or expects to serve once or only sporadically on a part-time basis under a separate appointment for each period of service or for each case heard. See Application Section E.

"Public election." This term includes primary and general elections; it includes partisan elections, nonpartisan elections and retention elections. See Section 5C.

"Require." The rules prescribing that a judge "require" certain conduct of others are, like all of the rules in this Code, rules of reason. The use of the term "require" in that context means a judge is to exercise reasonable direction and control over the conduct of those persons subject to the judge’s direction and control. See Sections 3B(3), 3B(4), 3B(5), 3B(6), 3B(9) and 3C(2).

"Third degree of relationship." The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece. See Section 3E(1)(d).

 

*Judicial disciplinary procedures adopted in the jurisdictions should comport with the requirements of due process. The ABA Standards Relating to Judicial Discipline and Disability Retirement are cited as an example of how these due process requirements may be satisfied.
Due Process of Law encompasses several doctrines of U.S. Constitutional law protecting important liberties from limitation and requiring that citizens only be deprived of rights or property through valid and fair procedures.

These doctrines are rooted in the common law, state constitutions, the Bill of Rights, and the Fifth and Fourteenth Amendments. The Fifth Amendment limits the national government: "No person shall … be deprived of life, liberty, or property, without due process of law." Section one of the Fourteenth Amendment correspondingly binds the states. Constitutions in the fifty states incorporate similar requirements.

Due process of law has many sources. It is a descendent of the Aristotelian idea of the rule of law, that the best state is one governed by laws rather than by men. It is rooted in a requirement of Magna Carta, accepted by King John in 1215 and finally confirmed in 1297 by Edward I. Chapter 29 (chapter 39 in 1215) states,

"No Freeman shall be taken, or imprisoned, or be disseised [dispossessed] of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right."

This formula was restated in a statute of 1354, which declared "no man … shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." The influence of Magna Carta in English law, however, was not great during the later feudal age.

The influence of Magna Carta and chapter 39 revived in England just before the founding of the English colonies in America. In a series of opinions from the bench, English judges—particularly Sir Edward Coke, Chief Justice under James I—argued according to Magna Carta and "the ancient constitution" it enshrined that law must be based in courts alone, that judges must be independent from executive influence, and that neither King, Church, nor sheriffs could enter houses without warrants, raise taxes without Parliament, or make arrests not according to the law. These arguments were printed in Sir Edward Coke's Reports of Cases, in his Second Institute of the Laws of England, and in the Petition of Right, which he wrote and which passed Parliament in 1628. Coke's Reports and Institutes were the standard books for students and lawyers in the American colonies and early republic. In his Second Institute commentary on Magna Carta, Coke equated the "law of the land" with "due process of law," and so due process was made to encompass the broadest meaning of the common law, a meaning accepted both by Sir William Blackstone in his Commentaries and by the lawyers of colonial and early federal America. Perhaps more importantly, the Petition of Right was reaffirmed in the English Bill of Rights of 1689, which became a model for colonists who wrote similar provisions into colonial charters and for Americans seeking a Bill of Rights.

Thomas Jefferson's Lockean understanding of the state was a further influence. In 1690 John Locke wrote his Second Treatise, which much impressed the founding generation. Man in a state of nature, Locke argued, was free "to preserve his property—that is, his life, liberty, and estate," from the deprivations of others, judging them as he sees fit. But man in political society must cede this power to the community. The community's legislature was limited only by an obligation that Locke derived from natural law, although it echoed the common-law maxim, salus populi suprema lex ("the welfare of the people is the highest law"): "Their power in the utmost bounds of it is limited to the public good of the society." Such sentiments reverberated in Baron de Montesquieu's Spirit of the Laws (1748). It was this philosophical tradition that informed Thomas Jefferson's assertion in the Declaration of Independence that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." The first abuse of the Crown Jefferson listed to justify rebellion was that the king had "refused his Assent to Laws, the most wholesome and necessary for the public good."

These two strains of thought—the revived Magna Carta and a belief in "the rule of law to the good of the people"—influenced the early constitutions of the independent American states. For example, the Connecticut Constitutional Ordinance of 1776 required,

"That no Man's Life shall be taken away: No Man's Honor or good Name shall be stained: No Man's Person shall be arrested, restrained, banished, dismembered, nor any Ways punished, No Man shall be deprived of his Wife or Children: No Man's Goods or Estate shall be taken away from him nor any Ways indamaged under the Colour of Law, or Countenance of Authority; unless they be clearly warranted by the Laws of this State."

Virginia's Declaration of Rights required that "no man be deprived of his liberty except by the law of the land, or the judgment of his peers."

During the ratification debates of the 1780s, the agreement famously reached among sponsors and critics of the proposed constitution was struck following ratification of a bill of individual rights. When James Madison introduced the Bill of Rights, he drew its provisions primarily from proposals by the various states, four of which—New York, North Carolina, Virginia, and Pennsylvania—had proposed that no person be deprived of liberty except according to the law of the land or according to due process of law. Madison included a "due process of law" provision, based on New York's submission and reflecting its constitution. The Fifth Amendment was adopted and ratified with little debate.

Cases in the Supreme Court under the Due Process Clause were rare and initially limiting of its scope. In The Schooner Betsy, 8 US 443 (1807), Chief Justice Marshall ruled that the seizure of a vessel did not require a jury trial to ensure due process, because such cases are considered in admiralty court, which does not require a jury. In United States v. Bryan and Woodcock, 13 US 374 (1815), the Court rejected an argument that due process was violated by federal claims against the estate of a dead bankrupt. The most important limit to the amendment, however, was the Court's rebuff of attempts to bind the states to its terms (see Barron v. Baltimore, 32 US 243 [1833]; Withers v. Buckley, 61 US 84 [1857]).

The first constructive applications of due process in the Court were a passing comment by Justice William Johnson that Magna Carta was "intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice" (Bank of Columbia v. Okely, 17 US 235 [1819]), and a reference by Justice Joseph Story to arguments that the state could limit the privileges of a college with a royal charter only pursuant to due process of law. In the latter case, Trustees of Dartmouth College v. Woodward, 17 US 518 (1819), Story agreed with the argument of Daniel Webster, who had argued that due process, or law of the land, is "the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society." This definition was widely accepted. (See Thomas M. Cooley's Constitutional Limitations, 1868.)

The earliest cases in which the Fifth Amendment limited Congressional action involved attempts to enforce the rights of slaveholders. Justice Baldwin, dissenting in a case construing state slavery laws, noted that state laws define what is property, even including slaves, so that "under the fifth amendment of the Constitution, these rights do not consist merely in ownership; the right of disposing of property of all kinds, is incident to it, which Congress cannot touch" (Groves v. Slaughter, 40 US 449 [1841]). This view that due process limited not only how a right may be lost but also what rights can be taken through legislation was widely held among state courts (see Wynehamer v. People, 13 NY 378 [1855]). Thus when in Dred Scott v. Sanford, 60 US 393 (1857), the Supreme Court finally confronted the question of whether Congress could limit slavery, with dreadful predictability the Court held that under the Fifth Amendment, Congress could not limit the property rights of slaveholders entering federal territories. The Dred Scottcase was a severe blow to the Court's prestige, and in later years its memory would underscore arguments to limit the application of due process over the substance of laws.

During Reconstruction, Congress passed and the states ratified, the Southern states under compulsion, the Fourteenth Amendment. Section one of that amendment provides, "No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This latter clause, intended to ensure that no state discriminated against groups, such as the freedmen of the South or the Germans of the North, made specific an idea that once had been only implicitly within the scope of due process. (See Equal Protection of the Law.) The drafters of the Fourteenth Amendment made a further distinction, between "law" and "the laws." One reading of this difference is that "the laws" are those actually passed by legislatures, while "law" remains the ideal of the common law.

In the late nineteenth century, the Court employed due process among several tools curbing Congressional and state power to regulate labor and commerce. In the Slaughterhouse Cases, 83 US 36 (1873), Justices Bradley and Swayne argued, in dissent, that a state law granting a monopoly deprived the people of liberty and property in their choice of employment. The right of choice in adopting lawful employments is, "a portion of their liberty: their occupation is their property." This view, quickly adopted by state courts, was later accepted by the Court's majority and applied in a series of cases ruling that the Due Process Clause and the Contracts Clause forbade statutes limiting child labor, wage and hour laws, and laws requiring safe or sanitary working conditions (for example, Allgeyer v. Louisiana, 165 US 578 [1897]; Lochner v. New York, 198 US 45 [1905]). The seeds of doubt had been sown, however, and Oliver Wendell Holmes argued in an influential dissent in Lochner that due process did not enshrine one economic theory of the law.

The pressures of the Great Depression, the influence on judges of progressivism and legal realism, and the drumbeat of legislation from the states and the Congress led the Court to severely limit its broad use of due process to evaluate legislation. (See Police Power.) In National Labor Relations Board v. Jones and Laughlin (1937), the Court ruled that it would defer to Congress and to agencies in regulating commerce, interfering only if the statute or action was unreasonable. Similar deference was extended to labor and property regulation. "Reasonableness review" is not utterly empty, and the Court has continued to assert that due process requires every statute to pursue a legitimate governmental purpose through reasonable means.

Due process since the New Deal era has followed distinct lines of argument, based on procedure, the incorporation of liberties into the Bill of Rights, limits on laws that are vague, limits on laws that burden excluded classes, and the protection of ordered liberty.

"Procedural due process" is the twentieth-century term for the traditional concern that no one lose life, liberty, or property without proper adjudication. It appears to have first been used in 1934 by Justice Roberts, dissenting in Snyder v. Massachusetts, 291 US 97: "Procedural due process has to do with the manner of the trial; dictates that in the conduct of judicial inquiry certain fundamental rules of fairness be observed; forbids the disregard of those rules, and is not satisfied, though the result is just, if the hearing was unfair." This element of due process most importantly requires that any permanent loss of property be preceded by a fair proceeding by a court with jurisdiction over the matter, and that the person defending there have adequate notice and a fair opportunity to defend the case before an impartial judge (see Rees v. City of Watertown, 86 US 107 [1873]; Hurtado v. California, 110 US 516 [1884]). The extent of the process required has, since Mathews v. Eldridge, 424 US 319 (1976), varied according to the interest at risk: if the interest to the individual is more important, and additional procedures would likely diminish factual mistakes and are not too expensive, it is more likely the procedures will be required.

The most critical question of procedural due process is what interests it protects. The nineteenth-and early twentieth-century view was to distinguish protected rights from unprotected interests. Thus, when Justice Holmes said, "there is no right to be a policeman," it followed that denying certain liberties to a policeman on the job did not give rise to due process requirements (McAuliffe v. Mayor of NewBedford, 155 Mass. 216 [1892]). In the last third of the twentieth century, this distinction dissolved, and the Court recognized due process guarantees against the loss of government-created entitlements (Goldberg v. Kelly, 397 US 254 [1970]), finding in Board of Regents v. Roth, 408 US 564 (1972) that due process rights apply to job termination if a reasonable expectation of continued government employment gives rise to a property interest. Paul v. Davis, 424 US 693 (1976) recognized similar protections for a liberty interest. (See also Morrissey v. Brewer, 408 US 471 [1972], in reference to prisoner parole hearings; and Goss v. Lopez, 419 US 565 [1975], concerning public education.)

The closing decades of the twentieth century saw some retreat from broad applications of procedural due process. Acting often on arguments to reassert the "original intent" of the framers, the Court also limited the requirements of notice, as when a prior conviction serves as notice for all postconviction harms by state officials (Parratt v. Taylor, 451 US 527 [1981]), or the definition of liberty is narrowed to exclude the civil commitment to prison (Kansas v. Hendricks, 521 US 346 [1997]).

Although review of economic legislation has diminished, it has yet to die. The potential for the Court to strike down state economic regulations persists, although it is unclear how willing the Court is to act on such grounds alone, and much of the scrutiny of state regulations once done as a matter of due process was done in the 1980s and 1990s as review of limitations on property rights under the takings clause (see Eastern Enterprises v. Apfel, 524 US 498 [1998]).

The Court has continued to apply due process to protect individual liberties, interpreting it to incorporate the restrictions of the Bill of Rights. In Twining v. New Jersey, 211 US 78 (1908), the Court suggested the possibility, manifested in Justice Cardozo's opinion in Palko v. Connecticut, 302 US 319 (1937), that some limits on the central government in the first eight amendments are "incorporated" into the due process clause of the Fourteenth Amendment and so binding on the states. Since then, the Court has incorporated into due process the First Amendment's guarantees of speech, religion, and association (West Virginia v. Barnette, 319 US 624 [1943]; Everson v. Board of Education, 330 US 1 [1947]; Edwards v. South Carolina, 372 US 229 [1963]); the Fourth Amendment's warrants and search clauses (Mapp v. Ohio, 367 US 643 [1961]; Ker v. California, 374 US 23 [1963]); the Fifth Amendment's bars of double jeopardy, self-incrimination, and takings of property without just compensation (Palko [1937]; Malloy v. Hogan, 378 US 1 [1964]; Penn Central v. New York City, 438 US 104 [1978]); the Sixth Amend-ment's guarantees of a speedy and public jury trial, with notice of the charge, and of the right to confront witnesses, who must appear, and the right to counsel (Klopfer v. North Carolina, 386 US 213 [1967]; In re Oliver, 333 US 257 [1948]; Duncan v. Louisiana, 391 US 145 [1968]; Cole v. Arkansas, 333 US 196 [1948]; Pointer v. Texas, 380 US 400 [1965]; Washington v. Texas, 388 US 56 [1967]; Gideon v. Wainwright, 372 US 335 [1963]); and the Eighth Amendment's bars on excessive bail and on cruel and unusual punishment (Schilb v. Kuebel, 404 US 357 [1971]; Robinson v. California, 370 US 660 [1962]).

Vagueness has been a due-process standard for criminal law since Stromberg v. California, 283 US 359 (1931), in which Chief Justice Hughes wrote that a statute so vague as to allow the punishment of speech protected under the First Amendment would violate the Fourteenth Amendment. This idea was expanded in 1948 into a general standard of definiteness, which requires that crimes be defined with appropriate definiteness so that anyone with common intelligence can determine what conduct is punishable (Winters v. New York, 333 US 507). (See also Papachristou v. City of Jacksonville, 405 US 156 [1972], invalidating a vagrancy law, and Chicago v. Morales, 527 US 41 [1999], invalidating a gang-member loitering law.)

Some federal due-process cases examine laws more strictly than merely assuring they are reasonable. If a law burdens a fundamental interest in liberty or creates a burden that falls particularly on a discreet and insular minority group that has been denied access to the legislative process, the degree of judicial scrutiny rises, and such laws will only be upheld if they pursue compelling state interests by the most narrowly tailored means possible. This idea, announced in a footnote in Justice Stone's opinion in United States v. Carolene Products, 304 US 144 (1938), has been the basis of the development of civil rights doctrines of equal protection. It has also been the basis for several cases that suggest the continuing vitality of general, substantive due process review, as one justification both for decisions protecting a right to privacy and guaranteeing rights to medical procedures (see Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 [1992]; Washington v. Glucksberg, 521 US 702 [1997]).

One important application of this approach has been to read the Fifth Amendment's due-process limits on Congress as including an assurance of equal protection. Signaling such a change in the Japanese internment cases, the Court announced in Hirabayashi v. United States, 320 US 81 (1943), that the Fifth Amendment may restrain "such discriminatory legislation by Congress as amounts to a denial of due process" and in Korematsu v. United States, 323 US 214 (1944), that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect" and to be reviewed with "the most rigid scrutiny." Thus in Bolling v. Sharpe, 347 US 497 (1954), the Court struck down District of Columbia school-segregation laws under the Fifth Amendment.

Lastly, the states remain important sources for the expansion of due process laws. State courts have the final authority to determine the meaning of state constitutions, and the due process clauses of state law have often been interpreted to encompass broader protections of individual rights than have been found in the Fifth and Fourteenth Amendments.
Commentary:

A remittal procedure provides the parties an opportunity to proceed without delay if they wish to waive the disqualification. To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule. A party may act through counsel if counsel represents on the record that the party has been consulted and consents. As a practical matter, a judge may wish to have all parties and their lawyers sign the remittal agreement.

2 Amended August 10, 1999, American Bar Association House of Delegates, Atlanta, Georgia, per Report 123.

3 This provision is meant to be applicable wherever judges are subject to public election; specific amount and time limitations, to be determined based on circumstances within the jurisdiction, should be inserted in the brackets.

4 This provision is meant to be applicable wherever judges are subject to public election. Jurisdictions that adopt specific dollar limits on contributions in section 5(C)(3) should adopt the same limits in section 3(E)(1)(e). Where specific dollar amounts determined by local circumstances are not used, the "reasonable and appropriate" language should be used.

 Model Code of Judicial Conduct PREAMBLE - TERMINOLOGY

PREAMBLE

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

The Code of Judicial Conduct is intended to establish standards for ethical conduct of judges. It consists of broad statements called Canons, specific rules set forth in Sections under each Canon, a Terminology Section, an Application Section and Commentary. The text of the Canons and the Sections, including the Terminology and Application Sections, is authoritative. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections. The Commentary is not intended as a statement of additional rules. When the text uses "shall" or "shall not," it is intended to impose binding obligations the violation of which can result in disciplinary action. When "should" or "should not" is used, the text is intended as hortatory and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined. When "may" is used, it denotes permissible discretion or, depending on the context, it refers to action that is not covered by specific proscriptions.

The Canons and Sections are rules of reason. They should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions.

The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through disciplinary agencies. It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.

The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them. It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system. See ABA Standards Relating to Judicial Discipline and Disability Retirement.*

The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges. They should also be governed in their judicial and personal conduct by general ethical standards. The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.


TERMINOLOGY

Terms explained below are noted with an asterisk (*) in the Sections where they appear. In addition, the Sections where terms appear are referred to after the explanation of each term below.

"Aggregate" in relation to contributions for a candidate under Sections 3E(1)(e) and 5C(3) and (4) denotes not only contributions in cash or in kind made directly to a candidate's committee or treasurer, but also, except in retention elections, all contributions made indirectly with the understanding that they will be used to support the election of the candidate or to oppose the election of the candidate's opponent. See Sections 3E(1)(e), 5C(3) and 5C(4).

"Appropriate authority" denotes the authority with responsibility for initiation of disciplinary process with respect to the violation to be reported. See Sections 3D(1) and 3D(2).

"Candidate." A candidate is a person seeking selection for or retention in judicial office by election or appointment. A person becomes a candidate for judicial office as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, or authorizes solicitation or acceptance of contributions or support. The term "candidate" has the same meaning when applied to a judge seeking election or appointment to non-judicial office. See Preamble and Sections 5A, 5B, 5C and 5E.

"Continuing part-time judge." A continuing part-time judge is a judge who serves repeatedly on a part-time basis by election or under a continuing appointment, including a retired judge subject to recall who is permitted to practice law. See Application Section C.

"Court personnel" does not include the lawyers in a proceeding before a judge. See Sections 3B(7)(c) and 3B(9).

"De minimis" denotes an insignificant interest that could not raise reasonable question as to a judge’s impartiality. See Sections 3E(1)(c) and 3E(1)(d).

"Economic interest" denotes ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant in the affairs of a party, except that:

(i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;

(ii) service by a judge as an officer, director, advisor or other active participant in an educational, religious, charitable, fraternal or civic organization, or service by a judge’s spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization;

(iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest;

(iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities. See Sections 3E(1)(c) and 3E(2).

"Fiduciary" includes such relationships as executor, administrator, trustee, and guardian. See Sections 3E(2) and 4E.

"Impartiality" or "impartial" denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge. See Sections 2A, 3B(10), 3E(1), 5A(3)(a) and 5A(3)(d)(i).

"Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances. See Sections 3D, 3E(1), and 5A(3).

"Law" denotes court rules as well as statutes, constitutional provisions and decisional law. See Sections 2A, 3A, 3B(2), 3B(6), 4B, 4C, 4D(5), 4F, 4I, 5A(2), 5A(3), 5B(2), 5C(1), 5C(3) and 5D.

"Member of the candidate’s family" denotes a spouse, child, grandchild, parent, grandparent or other relative or person with whom the candidate maintains a close familial relationship. See Section 5A(3)(a).

"Member of the judge’s family" denotes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. See Sections 4D(3), 4E and 4G.

"Member of the judge’s family residing in the judge’s household" denotes any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge’s family, who resides in the judge’s household. See Sections 3E(1) and 4D(5).

"Nonpublic information" denotes information that, by law, is not available to the public. Nonpublic information may include but is not limited to: information that is sealed by statute or court order, impounded or communicated in camera; and information offered in grand jury proceedings, presentencing reports, dependency cases or psychiatric reports. See Section 3B(12).

"Periodic part-time judge." A periodic part-time judge is a judge who serves or expects to serve repeatedly on a part-time basis but under a separate appointment for each limited period of service or for each matter. See Application Section D.

"Political organization" denotes a political party or other group, the principal purpose of which is to further the election or appointment of candidates to political office. See Sections 5A(1), 5B(2) and 5C(1).

"Pro tempore part-time judge." A pro tempore part-time judge is a judge who serves or expects to serve once or only sporadically on a part-time basis under a separate appointment for each period of service or for each case heard. See Application Section E.

"Public election." This term includes primary and general elections; it includes partisan elections, nonpartisan elections and retention elections. See Section 5C.

"Require." The rules prescribing that a judge "require" certain conduct of others are, like all of the rules in this Code, rules of reason. The use of the term "require" in that context means a judge is to exercise reasonable direction and control over the conduct of those persons subject to the judge’s direction and control. See Sections 3B(3), 3B(4), 3B(5), 3B(6), 3B(9) and 3C(2).

"Third degree of relationship." The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece. See Section 3E(1)(d).

*Judicial disciplinary procedures adopted in the jurisdictions should comport with the requirements of due process. The ABA Standards Relating to Judicial Discipline and Disability Retirement are cited as an example of how these due process requirements may be satisfied.
Due Process of Law encompasses several doctrines of U.S. Constitutional law protecting important liberties from limitation and requiring that citizens only be deprived of rights or property through valid and fair procedures.

These doctrines are rooted in the common law, state constitutions, the Bill of Rights, and the Fifth and Fourteenth Amendments. The Fifth Amendment limits the national government: "No person shall … be deprived of life, liberty, or property, without due process of law." Section one of the Fourteenth Amendment correspondingly binds the states. Constitutions in the fifty states incorporate similar requirements.

Due process of law has many sources. It is a descendent of the Aristotelian idea of the rule of law, that the best state is one governed by laws rather than by men. It is rooted in a requirement of Magna Carta, accepted by King John in 1215 and finally confirmed in 1297 by Edward I. Chapter 29 (chapter 39 in 1215) states,

"No Freeman shall be taken, or imprisoned, or be disseised [dispossessed] of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right."

This formula was restated in a statute of 1354, which declared "no man … shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." The influence of Magna Carta in English law, however, was not great during the later feudal age.

The influence of Magna Carta and chapter 39 revived in England just before the founding of the English colonies in America. In a series of opinions from the bench, English judges—particularly Sir Edward Coke, Chief Justice under James I—argued according to Magna Carta and "the ancient constitution" it enshrined that law must be based in courts alone, that judges must be independent from executive influence, and that neither King, Church, nor sheriffs could enter houses without warrants, raise taxes without Parliament, or make arrests not according to the law. These arguments were printed in Sir Edward Coke's Reports of Cases, in his Second Institute of the Laws of England, and in the Petition of Right, which he wrote and which passed Parliament in 1628. Coke's Reports and Institutes were the standard books for students and lawyers in the American colonies and early republic. In his Second Institute commentary on Magna Carta, Coke equated the "law of the land" with "due process of law," and so due process was made to encompass the broadest meaning of the common law, a meaning accepted both by Sir William Blackstone in his Commentaries and by the lawyers of colonial and early federal America. Perhaps more importantly, the Petition of Right was reaffirmed in the English Bill of Rights of 1689, which became a model for colonists who wrote similar provisions into colonial charters and for Americans seeking a Bill of Rights.

Thomas Jefferson's Lockean understanding of the state was a further influence. In 1690 John Locke wrote his Second Treatise, which much impressed the founding generation. Man in a state of nature, Locke argued, was free "to preserve his property—that is, his life, liberty, and estate," from the deprivations of others, judging them as he sees fit. But man in political society must cede this power to the community. The community's legislature was limited only by an obligation that Locke derived from natural law, although it echoed the common-law maxim, salus populi suprema lex ("the welfare of the people is the highest law"): "Their power in the utmost bounds of it is limited to the public good of the society." Such sentiments reverberated in Baron de Montesquieu's Spirit of the Laws (1748). It was this philosophical tradition that informed Thomas Jefferson's assertion in the Declaration of Independence that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." The first abuse of the Crown Jefferson listed to justify rebellion was that the king had "refused his Assent to Laws, the most wholesome and necessary for the public good."

These two strains of thought—the revived Magna Carta and a belief in "the rule of law to the good of the people"—influenced the early constitutions of the independent American states. For example, the Connecticut Constitutional Ordinance of 1776 required,

"That no Man's Life shall be taken away: No Man's Honor or good Name shall be stained: No Man's Person shall be arrested, restrained, banished, dismembered, nor any Ways punished, No Man shall be deprived of his Wife or Children: No Man's Goods or Estate shall be taken away from him nor any Ways indamaged under the Colour of Law, or Countenance of Authority; unless they be clearly warranted by the Laws of this State."

Virginia's Declaration of Rights required that "no man be deprived of his liberty except by the law of the land, or the judgment of his peers."

During the ratification debates of the 1780s, the agreement famously reached among sponsors and critics of the proposed constitution was struck following ratification of a bill of individual rights. When James Madison introduced the Bill of Rights, he drew its provisions primarily from proposals by the various states, four of which—New York, North Carolina, Virginia, and Pennsylvania—had proposed that no person be deprived of liberty except according to the law of the land or according to due process of law. Madison included a "due process of law" provision, based on New York's submission and reflecting its constitution. The Fifth Amendment was adopted and ratified with little debate.

Cases in the Supreme Court under the Due Process Clause were rare and initially limiting of its scope. In The Schooner Betsy, 8 US 443 (1807), Chief Justice Marshall ruled that the seizure of a vessel did not require a jury trial to ensure due process, because such cases are considered in admiralty court, which does not require a jury. In United States v. Bryan and Woodcock, 13 US 374 (1815), the Court rejected an argument that due process was violated by federal claims against the estate of a dead bankrupt. The most important limit to the amendment, however, was the Court's rebuff of attempts to bind the states to its terms (see Barron v. Baltimore, 32 US 243 [1833]; Withers v. Buckley, 61 US 84 [1857]).

The first constructive applications of due process in the Court were a passing comment by Justice William Johnson that Magna Carta was "intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice" (Bank of Columbia v. Okely, 17 US 235 [1819]), and a reference by Justice Joseph Story to arguments that the state could limit the privileges of a college with a royal charter only pursuant to due process of law. In the latter case, Trustees of Dartmouth College v. Woodward, 17 US 518 (1819), Story agreed with the argument of Daniel Webster, who had argued that due process, or law of the land, is "the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society." This definition was widely accepted. (See Thomas M. Cooley's Constitutional Limitations, 1868.)

The earliest cases in which the Fifth Amendment limited Congressional action involved attempts to enforce the rights of slaveholders. Justice Baldwin, dissenting in a case construing state slavery laws, noted that state laws define what is property, even including slaves, so that "under the fifth amendment of the Constitution, these rights do not consist merely in ownership; the right of disposing of property of all kinds, is incident to it, which Congress cannot touch" (Groves v. Slaughter, 40 US 449 [1841]). This view that due process limited not only how a right may be lost but also what rights can be taken through legislation was widely held among state courts (see Wynehamer v. People, 13 NY 378 [1855]). Thus when in Dred Scott v. Sanford, 60 US 393 (1857), the Supreme Court finally confronted the question of whether Congress could limit slavery, with dreadful predictability the Court held that under the Fifth Amendment, Congress could not limit the property rights of slaveholders entering federal territories. The Dred Scottcase was a severe blow to the Court's prestige, and in later years its memory would underscore arguments to limit the application of due process over the substance of laws.

During Reconstruction, Congress passed and the states ratified, the Southern states under compulsion, the Fourteenth Amendment. Section one of that amendment provides, "No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This latter clause, intended to ensure that no state discriminated against groups, such as the freedmen of the South or the Germans of the North, made specific an idea that once had been only implicitly within the scope of due process. (See Equal Protection of the Law.) The drafters of the Fourteenth Amendment made a further distinction, between "law" and "the laws." One reading of this difference is that "the laws" are those actually passed by legislatures, while "law" remains the ideal of the common law.

In the late nineteenth century, the Court employed due process among several tools curbing Congressional and state power to regulate labor and commerce. In the Slaughterhouse Cases, 83 US 36 (1873), Justices Bradley and Swayne argued, in dissent, that a state law granting a monopoly deprived the people of liberty and property in their choice of employment. The right of choice in adopting lawful employments is, "a portion of their liberty: their occupation is their property." This view, quickly adopted by state courts, was later accepted by the Court's majority and applied in a series of cases ruling that the Due Process Clause and the Contracts Clause forbade statutes limiting child labor, wage and hour laws, and laws requiring safe or sanitary working conditions (for example, Allgeyer v. Louisiana, 165 US 578 [1897]; Lochner v. New York, 198 US 45 [1905]). The seeds of doubt had been sown, however, and Oliver Wendell Holmes argued in an influential dissent in Lochner that due process did not enshrine one economic theory of the law.

The pressures of the Great Depression, the influence on judges of progressivism and legal realism, and the drumbeat of legislation from the states and the Congress led the Court to severely limit its broad use of due process to evaluate legislation. (See Police Power.) In National Labor Relations Board v. Jones and Laughlin (1937), the Court ruled that it would defer to Congress and to agencies in regulating commerce, interfering only if the statute or action was unreasonable. Similar deference was extended to labor and property regulation. "Reasonableness review" is not utterly empty, and the Court has continued to assert that due process requires every statute to pursue a legitimate governmental purpose through reasonable means.

Due process since the New Deal era has followed distinct lines of argument, based on procedure, the incorporation of liberties into the Bill of Rights, limits on laws that are vague, limits on laws that burden excluded classes, and the protection of ordered liberty.

"Procedural due process" is the twentieth-century term for the traditional concern that no one lose life, liberty, or property without proper adjudication. It appears to have first been used in 1934 by Justice Roberts, dissenting in Snyder v. Massachusetts, 291 US 97: "Procedural due process has to do with the manner of the trial; dictates that in the conduct of judicial inquiry certain fundamental rules of fairness be observed; forbids the disregard of those rules, and is not satisfied, though the result is just, if the hearing was unfair." This element of due process most importantly requires that any permanent loss of property be preceded by a fair proceeding by a court with jurisdiction over the matter, and that the person defending there have adequate notice and a fair opportunity to defend the case before an impartial judge (see Rees v. City of Watertown, 86 US 107 [1873]; Hurtado v. California, 110 US 516 [1884]). The extent of the process required has, since Mathews v. Eldridge, 424 US 319 (1976), varied according to the interest at risk: if the interest to the individual is more important, and additional procedures would likely diminish factual mistakes and are not too expensive, it is more likely the procedures will be required.

The most critical question of procedural due process is what interests it protects. The nineteenth-and early twentieth-century view was to distinguish protected rights from unprotected interests. Thus, when Justice Holmes said, "there is no right to be a policeman," it followed that denying certain liberties to a policeman on the job did not give rise to due process requirements (McAuliffe v. Mayor of NewBedford, 155 Mass. 216 [1892]). In the last third of the twentieth century, this distinction dissolved, and the Court recognized due process guarantees against the loss of government-created entitlements (Goldberg v. Kelly, 397 US 254 [1970]), finding in Board of Regents v. Roth, 408 US 564 (1972) that due process rights apply to job termination if a reasonable expectation of continued government employment gives rise to a property interest. Paul v. Davis, 424 US 693 (1976) recognized similar protections for a liberty interest. (See also Morrissey v. Brewer, 408 US 471 [1972], in reference to prisoner parole hearings; and Goss v. Lopez, 419 US 565 [1975], concerning public education.)

The closing decades of the twentieth century saw some retreat from broad applications of procedural due process. Acting often on arguments to reassert the "original intent" of the framers, the Court also limited the requirements of notice, as when a prior conviction serves as notice for all postconviction harms by state officials (Parratt v. Taylor, 451 US 527 [1981]), or the definition of liberty is narrowed to exclude the civil commitment to prison (Kansas v. Hendricks, 521 US 346 [1997]).

Although review of economic legislation has diminished, it has yet to die. The potential for the Court to strike down state economic regulations persists, although it is unclear how willing the Court is to act on such grounds alone, and much of the scrutiny of state regulations once done as a matter of due process was done in the 1980s and 1990s as review of limitations on property rights under the takings clause (see Eastern Enterprises v. Apfel, 524 US 498 [1998]).

The Court has continued to apply due process to protect individual liberties, interpreting it to incorporate the restrictions of the Bill of Rights. In Twining v. New Jersey, 211 US 78 (1908), the Court suggested the possibility, manifested in Justice Cardozo's opinion in Palko v. Connecticut, 302 US 319 (1937), that some limits on the central government in the first eight amendments are "incorporated" into the due process clause of the Fourteenth Amendment and so binding on the states. Since then, the Court has incorporated into due process the First Amendment's guarantees of speech, religion, and association (West Virginia v. Barnette, 319 US 624 [1943]; Everson v. Board of Education, 330 US 1 [1947]; Edwards v. South Carolina, 372 US 229 [1963]); the Fourth Amendment's warrants and search clauses (Mapp v. Ohio, 367 US 643 [1961]; Ker v. California, 374 US 23 [1963]); the Fifth Amendment's bars of double jeopardy, self-incrimination, and takings of property without just compensation (Palko [1937]; Malloy v. Hogan, 378 US 1 [1964]; Penn Central v. New York City, 438 US 104 [1978]); the Sixth Amend-ment's guarantees of a speedy and public jury trial, with notice of the charge, and of the right to confront witnesses, who must appear, and the right to counsel (Klopfer v. North Carolina, 386 US 213 [1967]; In re Oliver, 333 US 257 [1948]; Duncan v. Louisiana, 391 US 145 [1968]; Cole v. Arkansas, 333 US 196 [1948]; Pointer v. Texas, 380 US 400 [1965]; Washington v. Texas, 388 US 56 [1967]; Gideon v. Wainwright, 372 US 335 [1963]); and the Eighth Amendment's bars on excessive bail and on cruel and unusual punishment (Schilb v. Kuebel, 404 US 357 [1971]; Robinson v. California, 370 US 660 [1962]).

Vagueness has been a due-process standard for criminal law since Stromberg v. California, 283 US 359 (1931), in which Chief Justice Hughes wrote that a statute so vague as to allow the punishment of speech protected under the First Amendment would violate the Fourteenth Amendment. This idea was expanded in 1948 into a general standard of definiteness, which requires that crimes be defined with appropriate definiteness so that anyone with common intelligence can determine what conduct is punishable (Winters v. New York, 333 US 507). (See also Papachristou v. City of Jacksonville, 405 US 156 [1972], invalidating a vagrancy law, and Chicago v. Morales, 527 US 41 [1999], invalidating a gang-member loitering law.)

Some federal due-process cases examine laws more strictly than merely assuring they are reasonable. If a law burdens a fundamental interest in liberty or creates a burden that falls particularly on a discreet and insular minority group that has been denied access to the legislative process, the degree of judicial scrutiny rises, and such laws will only be upheld if they pursue compelling state interests by the most narrowly tailored means possible. This idea, announced in a footnote in Justice Stone's opinion in United States v. Carolene Products, 304 US 144 (1938), has been the basis of the development of civil rights doctrines of equal protection. It has also been the basis for several cases that suggest the continuing vitality of general, substantive due process review, as one justification both for decisions protecting a right to privacy and guaranteeing rights to medical procedures (see Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 [1992]; Washington v. Glucksberg, 521 US 702 [1997]).

One important application of this approach has been to read the Fifth Amendment's due-process limits on Congress as including an assurance of equal protection. Signaling such a change in the Japanese internment cases, the Court announced in Hirabayashi v. United States, 320 US 81 (1943), that the Fifth Amendment may restrain "such discriminatory legislation by Congress as amounts to a denial of due process" and in Korematsu v. United States, 323 US 214 (1944), that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect" and to be reviewed with "the most rigid scrutiny." Thus in Bolling v. Sharpe, 347 US 497 (1954), the Court struck down District of Columbia school-segregation laws under the Fifth Amendment.

Lastly, the states remain important sources for the expansion of due process laws. State courts have the final authority to determine the meaning of state constitutions, and the due process clauses of state law have often been interpreted to encompass broader protections of individual rights than have been found in the Fifth and Fourteenth Amendments.

Definition of Due Process of Law"The essential elements of due process of law are notice, an opportunity to be heard, and the right to defend in an orderly proceeding." Fiehe v. R.E. Householder Co., 125 So. 2, 7 (Fla. 1929).

"To dispense with notice before taking property is likened to obtaining judgement without the defendant having ever been summoned." Mayor of Baltimore vs. Scharf, 54 Md. 499, 519 (1880).

"An orderly proceeding wherein a person is served with notice, actual or constructive, and has an opportunity to be heard and to enforce and protect his rights before a court having power to hear and determine the case. Kazubowski v. Kazubowski, 45 Ill.2d 405, 259, N.E.2d 282, 290." Black’s Law Dictionary, 6th Edition, page 500.

"Due Process of law implies and comprehends the administration of laws equally applicable to all under established rules which do not violate fundamental principles of private rights, and in a competent tribunal possessing jurisdiction of the cause and proceeding upon justice. It is founded upon the basic principle that every man shall have his day in court, and the benefit of the general law which proceeds only upon notice and which hears and considers before judgement is rendered." State v. Green, 232 S.W.2d 897, 903 (Mo. 1950).

"Phrase means that no person shall be deprived of life, liberty, property or of any right granted him by statute, unless matter involved first shall have been adjudicated against him upon trial conducted according to established rules regulating judicial proceedings, and it forbids condemnation without a hearing, Pettit v. Penn., La.App., 180 So.2d 66, 69." Black’s Law Dictionary, 6th Edition, page 500.

"Due Process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgement upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law." Black’s Law Dictionary, 6th Edition, page 500.

"Aside from all else, ‘due process’ means fundamental fairness and substantial justice. Vaughn v. State, 3 Tenn.Crim.App. 54, 456 S.W.2d 879, 883." Black’s Law Dictionary, 6th Edition, page 500.Due Process Can Not Be Legislated

"[T]he meaning [due process] does not change with the ebb and flow of economic events." - Justice Sutherland, in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 402 (1936).

"It is manifest it was not left to the legislative power to exact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of government, and cannot be so construed as to leave congress free to make any process ‘due process of law,’ by its mere will." Murray's Lessee v. Hoboken Imp. Co., 18 How. (59 U.S.) 272, 276 (1855); French v. Barber Asphalt, 181 U.S. 324, 330 (1900).

"An act of the legislature is not necessarily the ‘law of the land.’ A state cannot make anything ‘due process of law’ which, by its own legislation, it declares to be such." Burdick v. People, 36 N.E. 948, 949, 149 Ill. 600 (1894).

"Due process of law does not mean merely according to the will of the Legislature, or the will of some judicial or quasi-judicial body upon whom it may confer authority. It means according to the law of the land, including the Constitution with its guaranties and the legislative enactments and rules duly made by its authority, so far as they are consistent with constitutional limitations." Ekern v. McGovern, 154 Wis. 157, 142 N.W. 595, 620 (1913), cases cited.

"’The law of the land,’ as used in the constitution, has long had an interpretation, which is well understood and practically adhered to. It does not mean an Act of the Legislature; if such was the true interpretation, this branch of the government could at any time take away life, liberty, property and privilege, without a trial by jury." Saco v. Wentworth, 37 Maine 165, 171 (1852).

"The individual may stand upon his constitutional rights as a citizen." "His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution." Hale v. Henkel, 201 U.S. 43, 74 (1905).

"[T]he provision [due process clause] is designed to exclude oppression and arbitrary power from every branch of government." Dupuy v. Tedora, 15 So.2d 886, 890, 204 La. 560 (1943).

"The Legislative has no right to absolute, arbitrary power over the lives and fortunes of the people. The Legislative cannot justly assume to itself a power to rule by extempore arbitrary decrees…" Samuel Adams, The Rights of the Colonists (1772).

"Daniel Webster, in the Dartmouth College Case, stated: ‘By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgement only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land.’ - It is thus entirely correct in assuming that a legislative enactment is not necessarily the law of the land." - Judge Thomas M. Cooley, A Treatise on Constitutional Limitations, 5th Ed. Little, Brown & Co.: Boston, 1883, Sec.353-54, p.432.

Due process (more fully due process of law) is the principle that the government must respect all of a person's legal rights, instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. In the laws of the United States, this principle gives individuals a varying ability to enforce their rights against alleged violations thereof by governments. Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to guarantee fundamental fairness, justice, and liberty. The latter interpretation is analogous to the concepts of natural justice and procedural justice used in various other jurisdictions.

The term "due process" existed long before 1791 when it was inserted into the U.S. Constitution. The term had a lengthy history in both England and America.[edit] In England

The concept of "due process" dates all the way back to the Magna Carta of A.D. 1215. In Chapter 39 of the Magna Carta, King John of England promised as follows: "No free man shall be taken or imprisoned or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land."[1] Magna Carta itself immediately became part of the "law of the land", and Chapter 61 of that great charter authorized an elected body of twenty-five barons to determine by majority vote what redress the King must provide when the King offends "in any respect against any man."[1] Thus, Magna Carta not only required the monarchy to obey the law of the land, but also limited how the monarchy could change the law of the land.

Shorter versions of Magna Carta were subsequently issued by British monarchs, and Chapter 39 of Magna Carta was renumbered "29."[2] The phrase due process of law first appeared in a statutory rendition of Magna Carta in A.D. 1354 during the reign of Edward III of England, as follows: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."[3]

In 1608, the English jurist Edward Coke wrote a treatise in which he discussed the meaning of Magna Carta. Coke explained that no man shall be deprived but by legem terrae, the law of the land, "that is, by the common law, statute law, or custom of England.... (that is, to speak it once and for all) by the due course, and process of law."[4]

Both the clause in Magna Carta and the later statute of 1354 were again explained in 1704 (during the reign of Queen Anne) by the Queen's Bench, in the case of Regina v. Paty.[5] In that case, the House of Commons had deprived John Paty and certain other citizens of the right to vote in an election, and had committed them to Newgate Prison merely for the offense of pursuing a legal action in the courts.[6] The Queen's Bench, in an opinion by Justice Powys, explained the meaning of "due process of law" as follows:

[I]t is objected, that by Mag. Chart. c. 29, no man ought to be taken or imprisoned, but by the law of the land. But to this I answer, that lex terrae is not confined to the common law, but takes in all the other laws, which are in force in this realm; as the civil and canon law.... By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority.[5]

Chief Justice Holt dissented in this case, because he believed that the commitment had not in fact been by a legal authority. The House of Commons had purported to legislate unilaterally, without approval of the House of Lords, ostensibly in order to regulate the election of its members.[7] Although the Queen's Bench held that the House of Commons had not infringed or overturned due process, John Paty was ultimately freed by Queen Anne when she prorogued Parliament.

Throughout centuries of British history, many laws and treatises asserted that various different requirements were part of "due process" or part of the "law of the land", but usually that was merely because of what the actual existing law happened to be, rather than because of any intrinsic requirement. As the U.S. Supreme Court has explained, it was not intended to assert that a requirement "was essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used."[8][edit] In America

In the early United States, the terms law of the land and due process were used somewhat interchangeably. The 1776 Constitution of Maryland, for example, used the language of Magna Carta, including the law of the land phrase.[9] In New York, a statutory bill of rights was enacted in 1787, and it contained four different due process clauses.[10] Alexander Hamilton commented on the language of that New York bill of rights: "The words 'due process' have a precise technical import...."[11]

New York was the only state that asked Congress to add "due process" language to the U.S. Constitution. New York ratified the U.S. Constitution and proposed the following amendment in 1788: "[N]o Person ought to be taken imprisoned or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law."[12]

In response to this proposal from New York, James Madison drafted a Due Process Clause for Congress.[13] Madison cut out some language, and inserted the word without, which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed, after Madison explained that the Due Process Clause would not be sufficient to protect various other rights:

Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed.[14]

No state or federal constitution in the United States had ever before utilized any "due process" wording, prior to 1791 when the federal Bill of Rights was ratified. However, when the U.S. Constitution took effect in 1789, it did contain a Supremacy Clause, which specified that the Constitution itself, and federal statutes enacted pursuant to the Constitution, would be the supreme "law of the land". As mentioned, in the early United States, the terms law of the land and due process were used somewhat interchangeably.[edit] Interpretation of Due Process Clause in U.S. Constitution

The Fifth Amendment guarantee of due process is applicable only to actions of the federal government. The Fourteenth Amendment contains virtually the same phrase, but expressly applied to the states. The Supreme Court has interpreted the two clauses identically, as Justice Felix Frankfurter once explained in a concurring opinion: “To suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.”[15]

The due process clause applies to "legal persons" (that is, corporate personhood) as well as to individuals. Many state constitutions also have their own guarantees of due process (or the equivalent) that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to certain individuals than under federal law.

Due process under the U.S. Constitution not only restrains the executive and judicial branches, but additionally restrains the legislative branch. For example, as long ago as 1855, the Supreme Court explained that, in order to ascertain whether a process is due process, the first step is to “examine the constitution itself, to see whether this process be in conflict with any of its provisions....”[16] In case a person is deprived of liberty by a process that conflicts with some provision of the Constitution, then the Due Process Clause normally prescribes the remedy: restoration of that person's liberty. The Supreme Court held in 1967 that “we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights.”[17]

As a limitation on Congress, the Due Process Clause has been interpreted by the Supreme Court not only as a remedial requirement when other constitutional rights have been violated, but furthermore as having additional "procedural" and "substantive" components, meaning that the Clause purportedly imposes unenumerated restrictions on legal procedures — the ways in which laws may operate — and also on legal substance — what laws may attempt to do or prohibit. This theory of unenumerated rights is controversial. For example, Justice Clarence Thomas stated as follows, in a 2004 dissent:[18]

As an initial matter, it is possible that the Due Process Clause requires only “that our Government must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provisions.” In re Winship, 397 U. S. 358, 382(1970) (Black, J., dissenting).

Despite the objections of people like Justice Hugo Black in Winship, the courts have attempted to extract unwritten requirements from the Due Process Clause, regarding both procedure as well as substance. The distinction between substance and procedure is difficult in both theory and practice to establish. Moreover, the substantive component of due process has proven to be even more controversial than the procedural component, because it gives the Court considerable power to strike down state and federal statutes that criminalize various activities.

By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme Court to mean that “it was not left to the legislative power to enact any process which might be devised. The [due process] 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 free to make any process ‘due process of law’ by its mere will.”[19] But determining what those restraints are has been a subject of considerable disagreement.[edit] Procedural due process

Procedural due process is essentially based on the concept of "fundamental fairness." As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, and the opportunity to be heard at these proceedings. Procedural due process has also been an important factor in the development of the law of personal jurisdiction.

In the United States, criminal prosecutions and civil cases are governed by explicit guarantees of procedural rights under the Bill of Rights, most of which have been incorporated under the Fourteenth Amendment to the States. Due process has also been construed to generally protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair opportunity to affect the judgment or result. This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being punished, which would be tantamount to cruel and unusual punishment.[20]

In 1934, the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental".[21][edit] Substantive due process[edit] Substantive due process basics

Courts have viewed the due process clause, and sometimes other clauses of the Constitution of the United States of America, as embracing those fundamental rights that are “implicit in the concept of ordered liberty” (Palko v. Connecticut). Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear.[22] Some of those rights have long histories or “are deeply rooted” in American society.

The courts have largely abandoned the Lochner era approach (approximately 1890-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract. Since then, the Supreme Court has decided that numerous other freedoms, that do not appear in the plain text of the Constitution, are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions,[23] and alternatively they could be protected by legislatures.[24][10]

Today, the Court focuses on three types of rights under substantive due process in the 14th amendment.[citation needed] These categories originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. Those three types of rights are: the substantive rights of the accused (e.g. the Eighth Amendment), restrictions on the political process (e.g. the rights of voting, association, and free speech), and the rights of “discrete and insular minorities.”

The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in the history and traditions of the United States. If the right is not a fundamental right the court applies a rational basis test; if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. Once the court has established that the right being violated is a fundamental right, the court inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.[edit] Development and use of substantive due process as legal doctrine

Early in American judicial history, various jurists attempted to form theories of natural rights and natural justice that would limit the power of government, especially regarding property and the rights of persons. Opposing "vested rights" were jurists who argued that the written constitution was the supreme law of the State and that judicial review could look only to that document — not to the "unwritten law" of "natural rights". Opponents further argued that the "police power" of government enabled legislatures to regulate the holding of property in the public interest, subject only to specific prohibitions of the written constitution.

The idea of substantive due process came in as a way to import natural law norms into the United States Constitution; prior to the Civil War, the state courts — ungoverned by the Fifth Amendment — were the arenas in which this struggle was carried out. Some critics of substantive due process argue that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford. Some advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott, but argue that it was employed incorrectly.

The "vested rights" jurists saw in the "law of the land" and "due process" clauses of state constitutions restrictions on the substantive content of legislation. Those jurists were sometimes successful in arguing that certain government infringements were prohibited, regardless of procedure. For example, the New York Court of Appeals held in Wynehamer v. New York that "without 'due process of law,' no act of legislation can deprive a man of his property, and that in civil cases an act of the legislature alone is wholly inoperative to take from a man his property."[25] However, the rationale of Wynehamer was subsequently rejected by the U.S. Supreme Court.[26] Other antebellum cases on due process include Murray v. Hoboken Land, which dealt with procedural due process.[27] But, the rationale of Murray was subsequently characterized by the U.S. Supreme Court, in the case of Hurtado v. California, as not providing "an indispensable test" of due process.[28]

Another important pre-Civil-War milestone in the history of due process was Daniel Webster's argument as counsel in Dartmouth College v. Woodward, that the Due Process Clause forbids bills of attainder and various other types of bad legislation.[29] Nevertheless, the U.S. Supreme Court declined in the Dartmouth case to address that aspect of Webster's argument, the New Hampshire Supreme Court had already rejected it,[30] and the U.S. Supreme Court would later contradict Webster's rationale.[31]

Given the preceding jurisprudence regarding due process, Chief Justice Taney was not entirely breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the Missouri Compromise unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." In Dred Scott, neither Taney nor dissenting Justice Curtis mentioned or relied upon the Court's previous discussion of due process in Murray, and Curtis disagreed with Taney about what "due process" meant in Dred Scott.

The phrase substantive due process was not used until the twentieth century. But, the concept was arguably employed during the nineteenth century.

Following the Civil War, the Fourteenth Amendment's due process clause prompted substantive due process interpretations to be urged on the Supreme Court as a limitation on state legislation. Initially, however, the Supreme Court rejected substantive due process as it came to be understood, including in the watershed Slaughter-House Cases. Some of those arguments came to be accepted by the Court over time, imposing on both federal and state legislation a firm judicial hand on property and economic rights that was not removed until the crisis of the 1930s.

Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, it has been charged that substantive due process developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts. Although economic liberty restrictions on legislation were largely abandoned by the courts, substantive due process rights continue to be successfully asserted today in non-economic legislation affecting intimate issues like bodily integrity, marriage, religion, childbirth, child rearing, and sexuality.

Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut, wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights, such as the First Amendment (protecting freedom of expression), Third Amendment (protecting homes from being used by soldiers), and Fourth Amendment (security against unreasonable searches). The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights, as Justice Harlan had argued in his concurring Griswold opinion, instead of relying on the "penumbras" and "emanations" of the Bill of Rights as the majority opinion did in Griswold. Although it has never been the majority view, some have argued that the Ninth Amendment (addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg concurring in Griswold.[32]

Social conservatives who reject sexual privacy rights, or who believe that those rights are properly subject to the democratic process absent further constitutional amendment, can nevertheless perhaps find some things to like in the line of substantive due process decisions. For example, religious parents persuaded the Supreme Court to recognize a substantive due process right "to control the education of one's children" and void state laws mandating that all students attend public school. In Pierce v. Society of Sisters, the Supreme Court said:[33]

We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.

Thus, if the entire substantive due process line was reversed, it is conceivable that religious parents' option of home schooling or private schooling might be in danger from some state universal education laws, although it is also possible that those laws might be deemed to violate "First Amendment principles", as Justice Kennedy speculated in Troxel v. Granville.[23] Current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision when one is available.[34]

The right to marry a person of a different race was addressed in Loving v. Virginia,[35] in which the Court said that its decision striking down anti-miscegenation laws could be justified either by substantive due process, or by the Equal Protection Clause. Advocates of substantive due process have sought to extend Loving in order to establish other rights (e.g. a right to gay marriage).[36] A right to have children was addressed in Skinner v. Oklahoma,[37] but the Court in Skinner explicitly declined to base its decision on due process, instead citing the Equal Protection Clause since the Oklahoma law required sterilization of some 3-time felons but not others. A substantive due process right of a parent to educate a young child (i.e. before ninth grade) in a foreign language was recognized in Meyer v. Nebraska, with two justices dissenting,[38] and Justice Kennedy has mentioned that Meyer might be decided on different grounds in modern times.[23] Laws that "shock the conscience" of the Court were generally deemed unconstitutional in Rochin v. California, though concurring Justices Black and Douglas argued that pumping a defendant's stomach for evidence should have been deemed unconstitutional on the narrower ground that it violates the Fifth Amendment's ban on self-incrimination.[39] The Court in O'Connor v. Donaldson[40] said that due process is violated by confining a non-dangerous mentally ill person who is capable of surviving safely in freedom, and Chief Justice Burger's concurring opinion noted that such confinement may also amount to "punishment" for being mentally ill, in violation of the interpretation of the Eighth Amendment in Robinson v. California. Freedom from excessive punitive damages was deemed to be a due process right in BMW v. Gore, though four justices disagreed.[41] The Court in Cruzan v. Missouri decided that due process is not violated when a state applies "a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state."[42][edit] Criticisms of substantive due process

Criticisms of the doctrine continue as in the past. Critics argue that judges are making determinations of policy and morality that properly belong with legislators (i.e. "legislating from the bench"), or argue that judges are reading views into the Constitution that are not really implied by the document, or argue that judges are claiming power to expand the liberty of some people at the expense of other people's liberty (e.g. as in the Dred Scott case), or argue that judges are addressing substance instead of process.

Oliver Wendell Holmes, Jr., a formalist, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents:[43]

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.

Originalists, such as Supreme Court Justice Thomas, who rejects substantive due process doctrine, and Supreme Court Justice Scalia, who has also questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation"[44] or an "oxymoron."[45] Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued over how substantive due process should be employed based on Court precedent. In other words, the main debate in recent decades within the Court over substantive due process seems to have been more about where to apply it, and less about whether it should be applied at all.

Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland[46] and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will." In his book Democracy and Distrust, non-originalist John Hart Ely criticized "substantive due process" as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase green pastel redness, and was radically undemocratic because it allowed judges to impose substantive values on the political process. Ely argued that the courts should serve to reinforce the democratic process, not to displace the substantive value choices of the people's elected representatives...

The current majority view of the Supreme Court supports substantive due process rights in a number of areas. An alternative to strict originalist theory is advocated by Supreme Court Justice Breyer, one of the Court's supporters of substantive due process rights. Breyer believes the justices need to look at cases in light of how their decisions will promote what he calls "active liberty", the Constitution's aim of promoting participation by citizens in the processes of government. That is an approach that ostensibly emphasizes "the document's underlying values" and looking broadly at a law's purpose and consequences. However, such an approach would also give judges the ability to look very broadly at the consequences and unwritten purpose of constitutional provisions, such as the Due Process Clause, and thereby remove issues from the democratic process.

Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case: "[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments."[47]Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process, and instead most originalists believe that such rights should be identified and protected legislatively, or via further constitutional amendments, or via other existing provisions of the Constitution. For example, some substantive due process liberties may be protectable according to the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Most originalists believe that rights UP DATED NOW !

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