The Guaranty of Due Process

May 20, 1937

Report Outline
Due Process Clauses of the Constitution
Origin of Due Process Guaranty
Second Due Process Clause and the States
Due Process Applied to Substance of Statutes

Due Process Clauses of the Constitution

The Supreme Court before concluding its present term on June 1, 1937, will hand down a decision on the constitutionality of the Social Security Act of 1935. Several cases are before the Court which involve both that statute and state legislation enacted in conformity with it, and presumably all of these eases will be covered in one comprehensive decision. The decision is expected to center on two constitutional issues: To what extent may the central government levy taxes for “the general welfare”? And do social security taxes violate the command to the federal government in the Fifth Amendment not to deprive any person of life, liberty, or property “without due process of law,” and the similar command to the states in the Fourteenth Amendment? On November 23, 1936, the Supreme Court divided 4 to 4, with Mr. Justice Stone not sitting, on the constitutionality of the unemployment insurance law of New York state, enacted to complement the federal Social Security Act. The result of the even alignment was to leave in effect the 5 to 2 decision of the New York Court of Appeals that the law did not deprive the employers of their property without due process of law.

No decisions of the Supreme Court in the last several decades have evoked severer or more widespread criticism than those invalidating certain federal and state enactments, and nullifying state utility commission rate rulings, as deprivations of life, liberty, or property without due process of law. Students of constitutional law have felt that the Court's interpretation of Due Process has become even more important than its interpretations of the interstate commerce clause and of the taxing power, because the due process clauses have been extended to cover many other guaranties and prohibitions in the Constitution. To some authorities Due Process is the hub around which the whole Constitution now revolves.

Importance of the Guaranty of Due Process

From 1920 to 1926 the Supreme Court declared more social and economic legislation unconstitutional under the due process clauses than in the preceding 52 years during which the Fourteenth Amendment had been in effect. From the ratification of the Fourteenth Amendment in 1868 down to 1913, only 6 per cent (6 of 98) of the laws invalidated by the Court fell under the ban of the due process requirement. From 1913 to 1920 the figure was only 7 per cent (7 of 97 laws invalidated). But in the following six years no less than 28 per cent (15 of 53) of the laws declared unconstitutional by the Court were held by a majority of the justices to violate the due process clauses. And in the year 1933 the Supreme Court applied Due Process, including the equal protection of the laws guaranty, in 22 cases; all other clauses of the Constitution, in 24 cases.

ISSUE TRACKER for Related Reports
Criminal Law Procedure and Due Process
Supreme Court History and Decisions