2.1.1 Personal jurisdiction

Procedural due process places limits on the assertion of personal jurisdictionPersonal jurisdiction jurisdiction of (or over) the person or jurisdiction in personam is the power of a court to require a party (usually the defendant) or a witness to come before the court. The court must have personal jurisdiction to enforce its judgm over a defendant to a lawsuitA lawsuit is a civil action brought before a court in order to recover a right, obtain damages for an injury, obtain an injunction to prevent an injury, or obtain a declaratory judgment to prevent future legal disputes. It usually involves dispute resolut, limiting the locations where that defendant may be hauled into court. This is of particular relevance in cases involving business transactions conducted across state lines, where the defendant may not have set foot in the other state, but still conducted affairs with the other state's residents through correspondence, the shipment of goods, or indirect agents. This limitation also applies to jurisdiction over foreign defendants in U.S. courts.

In a somewhat complicated line of cases, the Supreme Court has required that the defendant had established minimum contacts with the jurisdiction wishing to act as a forum for the litigation, such that the defendant should not be surprised that he was subject to suit in that location. The defendant must have purposefully availed himself of the privilege of conducting business within that jurisdiction—intentionally directing his activities at that state and its residents. Simply put, the defendant's actions determine where he can be sued, rather than the actions or movement of the plaintiff. Courts are still working out how this applies to lawsuits regarding internetThis article is about the Internet the extensive, worldwide computer network available to the public. An internet is a more general term for a set of interconnected computer networks that are connected by internetworking''. WWW information network structu activity and business, though they appear to be in agreement that the "passive" posting of a websiteA website or Web site (often shortened to a site is a collection of webpages, that is, documents accessible via the World Wide Web on the Internet. The pages of a website will be accessed from a common root URL, the homepage, and usually reside on the sam is not enough to establish widespread jurisdiction wherever someone wants to sue the web author over the contents.

A court in one state must have a means of notifying the resident of another (or of a foreign country), to comply with the notice requirement of due process. This is typically done through "long-arm statutes" that provide for service of processService of process is the term given to a court or administrative body's exercise of its jurisdiction over individuals who are the subject of proceedings or actions bought before such court, body or other tribunal. In most Anglo-American legal systems the upon the defendant in another jurisdiction through agents located or sent there. Because out-of-state defendants can't always be located easily, some state or local laws may allow for service by publication. An example of this would be printing a notice of the lawsuit in a newspaper published where the defendant is believed to reside. Because the failure of a defendant to appear in court results in a default judgmentIn law, a default is the failure to do something required by law or to appear at a required time in legal proceedings. For example, when a party has failed to file meaningful response to pleadings within the time allowed, with the result that only one sid against him, such measures must be sufficiently calculated to give actual notice to the defendant to satisfy due process.

2.2 Incorporation

The main articles of the ConstitutionLaw for the United States of America The Constitution of the United States is the supreme law of the United States of America and is the oldest written national constitution still in force. It was completed on September 17, 1787, with its adoption by the as well as the other amendments in the Bill of Rights contain many specific procedural guarantees that go beyond minimal due process, particularly in the context of criminal prosecution (see bottom of article for complete list). Though the Bill of Rights was originally written to limit only the power of the federal government, the Supreme Court has ruled that most of its guarantees are ensured against the States by the 14th Amendment's Privileges or Immunities clause as integral to federal citizenship, or a necessary part of the liberty protected by the Due Process Clause (see substantive due process below). The Slaughterhouse Cases of 1872 effectively ended claims under Privileges or Immunities, finding only a very limited number of privileges inherent to federal citizenship. Whichever clause has been used as justification, these rights have been held to be incorporated by the Fourteenth Amendment as a limitation on State power. Three exceptions are the Fifth Amendment right to an indictment by a grand jury, the Seventh Amendment right to a jury trial in civil lawsuits, which have been ruled to only apply in federal courts, and the Sixth Amendment's implicit command that all criminal convictions be reached by a twelve-member unanimous jury.

The genesis of incorporation has been traced back to either Chicago, Burlington & Quincy Railway Co. v. Chicago, 166 U.S. 226 (1897) in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee that can be found in the Fifth Amendment) or, more commonly, to Gitlow v. New York, 268 U.S. 652 (1925), in which the Court expressly held that States were bound to observe First Amendment free speech protections. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights. Many of the provisions of the First Amendment were applied to the States in the 1930s and 40s, but most of the procedural protections provided to criminal defendents were not enforced against the States until the Warren Court of the 1960s, famous for its concern for the rights of those accused of crimes, brought state standards in line with federal requirements.

As the incorporation drive picked up speed in the 1940s and 50s, disagreements over the method that ought to be taken in making Bill of Rights guarantees enforcable to the States emerged. One school of thought, championed by Justice Hugo Black, was total incorporation. Black felt that substantive due process required that the States respect all of the enumerated rights set forth in the first ten amendments, but did not wish to see the doctrine expanded to include other judicially determined "fundamental rights." Black felt that his formulation eliminated any arbitrariness or caprice in deciding what substantive due process ought to protect, by sticking to words already to be found in the Constitution. Black would most likely have disapproved of the Court's later decisions to expand the Due Process Clause to include the "right to privacy." Justice Felix Frankfurter, however, felt that the incorporation process ought to be incremental, and that the federal courts should only apply those sections of the Bill of Rights whose abridgement would "shock the conscience," as he put it in Rochin v. California, 342 U.S. 165 (1952). Although Frankfurter's incrementalist approach did carry the day, the end result is very nearly what Justice Black advocated, with the exceptions noted above.

Incorporation has applied most of the substantive rights of the Bill of Rights to the States as well. The doctrine of Incorporation is the only legal reason why, for example, States must recognize the First Amendment protections of freedom of speech or religion regardless of whether their own State laws and constitutions offer comparable protections. The only exceptions to Incorporation of the substantive rights in the Bill of Rights--the Second Amendment right to bear arms, the Third Amendment right not to have soldiers quartered in one’s home, and the Eighth Amendment prohibition on excessive bail and fines--are provisions that the Supreme Court has not definitively ruled on. Many lower federal appellate courts have ruled that these rights have been Incorporated, however.

Today, a new generation of conservative politicians takes issue with certain effects of the incorporation doctrine, including and especially federal courts' long history of applying the Establishment Clause of the First Amendment to the actions of state officials. It remains unclear whether these people are simply unaware of the reason that the First Amendment, which begins "Congress shall make no law..." has been and is now being interpreted to apply to state actions, or whether they are actually attacking the legal underpinnings of this long-standing approach. Regardless of which explanation is correct, incorporation seems to be on firm legal ground. Although Justice Clarence Thomas advocated an end to incorporation of the Establishment Clause in Elk Grove Unified School District v. Newdow (2004) (the Pledge of Allegiance case), he did not challenge other applications of the doctrine. Thomas' reasoning was confined to the first provision of the First Amendment, which he reasoned ought not to be applied through the Fourteenth Amendment's Due Process Clause because it guarantees no individual rights.

2.3 Substantive Due Process

Though on its face, the idea that due process is not only procedural but substantive seems paradoxical, the Court has endorsed that view. Note that the boundary between substance and procedure is far from exact. The Supreme Court has held for much of its history that due process must include limits not only on how people are put on trial (procedures), but also limits on what kind of control majorities can have over minorities and individuals (substance). The court has viewed the due process clause as embracing those fundamental rights that are "implicit in ordered liberty." Just what these rights are is not always clear. Substantive due process has protected such rights as marriage and raising children, and the extension of much of the Bill of Rights over the States. However, what are seen as past abuses and present excesses of this doctrine continue to spur debate over its use.

The idea of substantive due process was developed in the nineteenth century, rather than being part of the legacy of Magna Carta. James Madison explained as follows, when he proposed the Bill of Rights to Congress in 1789: "Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed." Magna Carta forbade the King from disobeying Parliament, and the framers of the Bill of Rights (including Madison) understood that Magna Carta did not forbid Parliament from doing anything.

Substantive due process has a checkered past in the U.S., as it was first applied by the Supreme Court in the infamous Dred Scott v. Sandford which partly caused the Civil War. Dred Scott was a slave who claimed that passing into territory where slavery was prohibited destroyed his owner's property rights over him. However, the Supreme Court held that due process protections of property restricted certain types of laws that would take away property, not merely the procedure by which it was taken. After the Fourteenth Amendment applied due process restrictions to states, the Supreme Court used this same doctrine to protect a liberty of contract so as to routinely strike down economic and labor regulations, as in Lochner v. New York. Some believe this jurisprudence contributed to the unregulated economic policies that (some economists argue) may have spawned the Great Depression.

As judges became more deferential to legislative judgment in the area of commerce, substantive due process shifted away from upholding laissez faire economics to recognizing individual rights considered to be fundamental liberty interests. This has included the Incorporation of most of the Bill of Rights under the Fourteenth Amendment to apply to the laws and actions of States, as well as the recognition of rights concerning family and privacy not elsewhere in the text of the Constitution. Substantive due process has notably been invoked to invalidate laws in such areas as abortion in Roe v. Wade, and most recently in Lawrence v. Texas regarding the rights of homosexuals to sexual intimacy.

The same criticisms of the doctrine continue as in the past: that justices are reading their personal views into the Constitution instead of interpreting it. However, the disagreements are much more concerned with what, based on tradition and history, should be embraced under such protections of fundamental liberty rather than whether there are such unspoken guarantees in the Constitution in the first place. Although two current Supreme Court Justices, Thomas and Scalia, believe that due process should only limit legislators with respect to procedural fairness (Scalia in particular has called substantive due process a "judicial usurpation"), even they have joined Court opinions that do not challenge the doctrine, and have in their dissents taken more to arguing 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 has been more about where to apply it, and less about whether it should be applied at all.

2.4 Explicit procedural guarantees in the U.S. Constitution

• Article One, Section 9:
  • the right to writs of habeas corpus, except during rebellion or invasion
  • the prohibition of bills of attainder (conviction and sentencing for a crime, typically treason, by a legislative act)
  • the prohibition of ex post facto laws (punishing acts not crimes at the time they were committed)
• Article Three, Section 2:
  • the right to a jury trial regardless of whether the crime occurred in a state or in another location
• The 5th Amendment:
  • the right to a grand jury indictment in federal court, in capital and other "infamous" cases, except for members of the armed forces
  • the prohibition of double jeopardy (prosecuting someone again for a crime of which they have already been acquitted)
  • the right to not commit self-incrimination
  • the right to due process of law for life, liberty, and property (as enforced against the federal government)
• The 6th Amendment:
  • in all criminal prosecutions:
    • the right to a speedy and public trial in the state where the crime occurred
    • the right to an impartial jury of one's peers
    • the right to know the charges and evidence
    • the right to confront and cross-examine opposing witnesses
    • the right to compel witnesses to appear
    • the right to counsel
• The 7th Amendment:
  • in civil trials in federal courts:
    • the right to a jury in civil trials
    • the guarantee that issues determined by a jury will not be redetermined by other courts in a manner contrary to the common law
• The 14th Amendment, Section 1:
  • the right to due process of law regarding life, liberty, and property (as enforced against State governments)

United States Constitution

Main body

Preamble | Article I | Article II | Article III | Article IV | Article V | Article VI | Article VII

Amendments

Bill of Rights: I | II | III | IV | V | VI | VII | VIII | IX | X

Other amendments: XI | XII | XIII | XIV | XV | XVI | XVII | XVIII | XIX | XX | XXI | XXII | XXIII | XXIV | XXV | XXVI | XXVII

History of the Constitution

Federalist Papers | Proposed amendments | Signatures | Unsuccessful amendments

Interpretation of the Constitution

Civil liberties | Congressional power of enforcement | Dormant Commerce Clause | Due process | Separation of powers

Specific clauses in the Constitution

Commerce Clause | Equal protection clause | Full Faith and Credit clause | Preemption of state and local laws | Supremacy clause | No religious test clause

Constitutional law U.S. Constitution International law legal terms

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