Total Justice

5. Due Process Revolution

5 THE DUE PROCESS REVOLUTION IT IS HARD TO GIVE an exact definition of the legal changes that go under the general phrase, the "due process revolution." They consist at least in part of a vast expansion of procedural rights. "Due process" is, of course, a fundamental constitutional principle. The phrase appears in the Fifth Amendment, and also in the Fourteenth . No one can be deprived of "life, liberty, or property" without "due process of law." "Due process," then, is a technical term of law, whatever else it may mean. The most famous cases about due process are constitutional cases in the Supreme Court. Thus the due process revolution grows out of a specific tradition, the American constitutional experience. But this point should not be exaggerated. Courts have stretched the meaning of the words "due process" like taffy; they have gone even further with another constitutional phrase, also in the Fourteenth Amendment, "equal protection of the laws." Still, due process (and equal protection) are not matters of words. The text of the Constitution is notoriously sluggish; it barely changes over the years, and the crucial texts (the Fourteenth Amendment, for example) have not changed at all for over a century. The "due process revolution" is therefore the product of social change. Specifically (as I have argued), it reflects a 80 THE DUE PROCESS REVOLUTION 81 pattern of increased demands on the legal system, a legal culture that interacts with a specific structure and tradition and grew out of changes in general and political culture. The concept of due process has now been stretched to cover a lot of territory. Fair procedures must prevail in all sorts of settings. To begin with, there are governmental settings. Government, especially administrative agencies, cannot take major actions-actions that affect people 's lives-without attention to process. Decisions to drop somebody from Social Security rolls, or to deport an alien, or to zone a neighborhood to keep out businesses or apartment houses, have to conform to complex doctrines that define fair procedures. Also, and very significantly , the concept now covers actions by institutions once more or less immune. It has spread to private institutions. A due process requirement now blankets hospitals, prisons, factories, department stores, and schools. (In this list, I have deliberately mixed together "public" and "private" institutions). Due process may thus be evolving in the direction of still another superprinciple: no organization or institution of any size should be able to impair somebody's vital interests ("life, liberty ... property") without granting certain procedural rights. What these rights are is the subject of an enormous body of case law, not easily summed up in a simple formula. They include the right to some sort of notice, the right to argue against what is proposed to be done, and (if the action is wrong or illegal) a fair shake at getting it reversed. The Fifth Amendment to the Constitution, in which the phrase "due process" appears, was ratified in 1791, which means that, constitutionally speaking, due process is a few years short of its twohundredth birthday. The idea itself is even older. Its meaning in the legal system has changed dramatically over time. In the nineteenth century, it referred basically to the conduct of criminal trials. Due process meant those steps and procedures that made a trial just and fair. (This meaning is certainly not dead; indeed, the decisions of the Warren Court have infused it with new vigor.) Criminal procedure was important to the revolutionary generation. It had pride of place in the Bill of Rights. Yet criminal process was not, in general, a major issue in the nineteenth century, with some exceptions and aberrations. That is, once the ties with England had been snapped, and the power of the executive tamed, the issue fell back into relative obscurity. 82 TOTAL JUSTICE Essentially, nineteenth-century criminal trials were run in a decent manner (at least compared to most societies), even though many things went on that civil libertarians today would find grossly offensive. Rights of criminal defendants were, in general, not at the top of national and state agendas. Constitutions, state and federal, duly listed procedural safeguards: privileges against self-incrimination, rules against unreasonable searches and seizures, against double jeopardy, rights to bail and habeas corpus, and so on. In a rough and ready way, trials conformed to the general constitutional plan. Nothing remotely like the horrors of Nazi Germany or...