Amendment V


"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against  himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Due Process of Law


1. Procedural Due Process

        SCOTUS Rules of process, criminal and civil of procedures.


2. Substantive due process

Substance of criminal laws. Threats to public health and safety, the rights of others. Not the substance of liberty or property. Unenumerated rights, a liberty interest historical and traditional to be fundamental, majority rules.


Substance of liberty is political due process of law.


        What is historical in the meaning of liberty is freedom from physical restraint, government custody. SCOTUS has declared liberty means more than physical restraint a liberty interest to do this or that, to travel, that is crime.


"[T]he guaranties of due process, though having their roots in Magna Carta's `per legem terrae' and considered as procedural safeguards `against executive usurpation and tyranny,' have in this country `become bulwarks also against arbitrary legislation.' " Planned Parenthood of Southeastern Pa. v. Casey 505 U.S. 833, 847 (1992) >Poe v. Ullman-367 U.S. 497, 541 (1961)

“The touchstone of due process is protection of the individual against arbitrary action of government.” Wolff v Mcdonnell,418 U.S. 539, 558 (1974) , 

One who assails the classification in such a law must carry the burden of showing that it does not rest upon any
reasonable basis, but is essentially arbitrary. Lindsey v Natural Carbonic Gas Co. 220 U.S. 61, 78-79 (1911)


A property right [is]…entitled to protection against state legislation in contravention of the federal Constitution, . ….And, unless justified as a valid exercise of the police power, the act assailed must be declared unconstitutional because the enforcement thereof will deprive appellant of its property without due process of law. Liggett Co. v. Baldridge, 278 U.S. 105, 111 (1928).


This Court has stated that the “prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitutional and political history, that we place on a person's right to enjoy what is his, free of governmental interference.” Fuentes v. Shevin, 407 U.S. 67, 81 (1972).


“Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations.” Munn v. Illinois, 94 U.S. 113, 134 (1876)


"procedural due process rules are shaped by the risk of error inherent in the truth-finding process" >Mathews v. Eldridge, 424 U.S. 319, 344 (1976) …Such rules "minimize substantively unfair or mistaken deprivations of "life, liberty, or property by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests. Carey v. Piphus,435 U.S. 247, 259-260 (1978)>Fuentes v Shevin 407 U.S. 67, 81 (1972).



The 'liberty' mentioned in that amendment means, ….the right of the citizen to be free from …physical restraint of his person, as by incarceration, It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. Allgeyer v. Louisiana,165 U.S. 578, 589 (1897)


Due process……has represented the balance ….. for the liberty of the individual …and the demands of organized society. Poe v. Ullman 367 U.S. 497, 542] (1961)

This inestimable right of [392 U.S. 1, 9] personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For as this Court has always recognized, "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891). with an individual's possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984).





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