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lien belligerents tried by military tribunals outside the territorial jurisdiction of the United States. 406 Early in our judicial history, a number of jurists attempted to formulate a theory of natural rights—natural justice, which would limit the power of government, especially with regard to the property rights of persons. 407 State courts were the arenas in which this struggle was carried out prior to the Civil War. Opposing the ‘‘vested rights’’ theory of protection of property were jurists who argued first, that the written constitution was the supreme law of the State and that judicial review could look only to that document in scrutinizing legislation and not to the ‘‘unwritten law’’ of ‘‘natural VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00076 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1437 408 The full account is related in E. CORWIN, LIBERTY AGAINST GOVERNMENT ch. 3 (1948). The pathbreaking decision of the era was Wynhamer v. The People, 13 N.Y. 378 (1856). 409 Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857). 410 French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901). rights,’’ and second, that the ‘‘police power’’ of government enabled legislatures to regulate the use and holding of property in the public interest, subject only to the specific prohibitions of the written constitution. The ‘‘vested rights’’ jurists thus found in the ‘‘law of the land’’ and the ‘‘due process’’ clauses of the state constitutions a restriction upon the substantive content of legislation, which prohibited, regardless of the matter of procedure, a certain kind or degree of exertion of legislative power altogether. 408 Thus, Chief Justice Taney was not innovating when in his opinion in the Dred Scott case he pronounced, without elaboration, that one of the reasons the Missouri Compromise was unconstitutional was that an act of Congress which 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.’’ 409 Following the War, with the ratification of the Fourteenth Amendment’s due process clause, substantive due process interpretations were urged on the Supreme Court with regard to state legislation; first resisted, the arguments came in time to be accepted, and they imposed upon both federal and state legislation a firm judicial hand which was not to be removed until the crisis of the 1930’s, and which today in non-economic legislation continues to be reasserted. ‘‘It may prevent confusion, and relieve from repetition, if we point out that some of our cases arose under the provisions of the Fifth and others under those of the Fourteenth Amendment to the Constitution of the United States. While the language of those Amendments is the same, yet as they were engrafted upon the Constitution at different times and in widely different circumstances of our national life, it may be that questions may arise in which different constructions and applications of their provisions may be proper.’’ 410 The most obvious difference between the two due process clauses is that the Fifth Amendment clause as it binds the Federal Government coexists with a number of other express provisions in the Bill of Rights guaranteeing fair procedure and non-arbitrary action, such as jury trials, grand jury indictments, and nonexcessive bail and fines, as well as just compensation, whereas the Fourteenth Amendment clause as it binds the States has been held to contain implicitly not only the standards of fair- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00077 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1438 AMENDMENT 5—RIGHTS OF PERSONS 411 Murray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 276–77, 280 (1856). A similar approach was followed in Fourteenth Amendment due process interpretation in Davidson v. City of New Orleans, 96 U.S. 97 (1878), and Munn v. Illinois, 94 U.S. 113 (1877). ness and justness found within the Fifth Amendment’s clause but also to contain many guarantees that are expressly set out in the Bill of Rights. In that sense, the two clauses are not the same thing, but insofar as they do impose such implicit requirements of fair trials, fair hearings, and the like, which exist separately from, though they are informed with, express constitutional guarantees, the interpretation of the two clauses is substantially if not wholly the same. Save for areas in which the particularly national character of the Federal Government requires separate treatment, discussion of the meaning of due process is largely reserved for the section on the Fourteenth Amendment. Finally, it should be noted that some Fourteenth Amendment interpretations have been carried back to broaden interpretations of the Fifth Amendment’s due process clause, such as, e.g., the development of equal protection standards as an aspect of Fifth Amendment due process. Procedural Due Process In 1855, the Court first attempted to assess its standards for judging what was due process. At issue was the constitutionality of summary proceedings under a distress warrant to levy on the lands of a government debtor. The Court first ascertained that Congress was not free to make any process ‘‘due process.’’ ‘‘To what principles, then are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceedings existing in the common and statute law of England, before the emigration of our ancestors and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.’’ A survey of history disclosed that the law in England seemed always to have contained a summary method for recovering debts owned the Crown not unlike the law in question. Thus, ‘‘tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by the act of 1820 cannot be denied to be due process of law. . . .’’ 411 This formal approach to the meaning of due process could obviously have limited both Congress and the state legislatures in the VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00078 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1439 412 Hurtado v. California, 110 U.S. 516, 528–29 (1884). 413 110 U.S. at 531–32, 535, 537. This flexible approach has been the one followed by the Court. E.g., Twining v. New Jersey, 211 U.S. 78 (1908); Powell v. Alabama, 287 U.S. 45 (1932); Palko v. Connecticut, 302 U.S. 319 (1937); Snyder v. Massachusetts, 291 U.S. 97 (1934). 414 Davidson v. City of New Orleans, 96 U.S. 97, 102 (1878); Public Clearing House v. Coyne, 194 U.S. 497, 508 (1904). 415 Ex parte Wall, 107 U.S. 265, 289 (1883). 416 Compare Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856), with Ng Fung Ho v. White, 259 U.S. 276 (1922). development of procedures unknown to English law. But when California’s abandonment of indictment by grand jury was challenged, the Court refused to be limited by the fact that such proceeding was the English practice and that Coke had indicated that it was a proceeding required as ‘‘the law of the land.’’ The meaning of the Court in Murray’s Lessee s was ‘‘that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law.’’ To hold that only historical, traditional procedures can constitute due process, the Court said, ‘‘would be to deny every quality of the law but its age, and to render it incapable of progress or improvement.’’ 412 Therefore, in observing the due process guarantee, it was concluded, the Court must look ‘‘not [to] particular forms of procedures, but [to] the very substance of individual rights to life, liberty, and property.’’ The due process clause prescribed ‘‘the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. . . . It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.’’ 413 Generally.—The phrase ‘‘due process of law’’ does not necessarily imply a proceeding in a court or a plenary suit and trial by jury in every case where personal or property rights are involved. 414 ‘‘In all cases, that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts.’’ 415 What is unfair in one situation may be fair in another. 416 ‘‘The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, the balance of hurt complained of and good accomplished— VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00079 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1440 AMENDMENT 5—RIGHTS OF PERSONS 417 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 163 (1951) (Justice Frankfurter concurring). 418 Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941). 419 321 U.S. 503, 521 (1944). 420 Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938). 421 Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907); Lipke v. Lederer, 259 U.S. 557 (1922). 422 Phillips v. Commissioner, 283 U.S. 589 (1931). Cf. Springer v. United States, 102 U.S. 586, 593 (1881); Passavant v. United States, 148 U.S. 214 (1893). The collection of taxes is, however, very nearly a wholly unique area. See Perez v. Ledesma, 401 U.S. 82, 127 n.17 (1971) (Justice Brennan concurring in part and dissenting in part). On the limitations on private prejudgment collection, see Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). 423 Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950). But see Arnett v. Kennedy, 416 U.S. 134, 170 n.5 (Justice Powell), 196–99 (Justice White) (1974) (hearing before probably-partial officer at pretermination stage). 424 Margan v. United States, 304 U.S. 1, 18–19 (1938). The Court has experienced some difficulty with application of this principle to administrative hearings and subsequent review in selective service cases. Compare Gonzales v. United these are some of the considerations that must enter into the judicial judgment.’’ 417 Administrative Proceedings: A Fair Hearing.—With respect to action taken by administrative agencies, the Court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding, so long as a hearing is held before the final order becomes effective. 418 In Bowles v. Willingham, 419 the Court sustained orders fixing maximum rents issued without a hearing at any stage, saying ‘‘where Congress has provided for judicial review after the regulations or orders have been made effective it has done all that due process under the war emergency requires.’’ But where, after consideration of charges brought against an employer by a complaining union, the National Labor Relations Board undertook to void an agreement between an employer and another independent union, the latter was entitled to notice and an opportunity to participate in the proceedings. 420 Although a taxpayer must be afforded a fair opportunity for hearing in connection with the collection of taxes, 421 collection by distraint of personal property is lawful if the taxpayer is allowed a hearing thereafter. 422 When the Constitution requires a hearing it requires a fair one, held before a tribunal which meets currently prevailing standards of impartiality. 423 A party must be given an opportunity not only to present evidence, but also to know the claims of the opposing party and to meet them. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon the proposal before the final command is issued. 424 But a variance between the charges VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00080 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1441 States, 348 U.S. 407 (1955) (conscientious objector contesting his classification before appeals board must be furnished copy of recommendation submitted by Department of Justice; only by being appraised of the arguments and conclusions upon which recommendations were based would he be enabled to present his case effectively), with United States v. Nugent, 346 U.S. 1 (1953) (in auxiliary hearing which culminated in Justice Department’s report and recommendation, it is sufficient that registrant be provided with resume of adverse evidence in FBI report because the ‘‘imperative needs of mobilization and national vigilance’’ mandate a minimum of ‘‘litigious interruption’’), and Gonzales v. United States, 364 U.S. 59 (1960) (five-tofour decision finding no due process violation when petitioner (1) at departmental proceedings was not permitted to rebut statements attributed to him by his local board, because the statements were in his file and he had opportunity to rebut both before hearing officer and appeal board, nor (2) at trial was denied access to hearing officer’s notes and report, because he failed to show any need and did have Department recommendations). 425 NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 349–50 (1938). 426 Western Chem. Co. v. United States, 271 U.S. 268 (1926). See also United States v. Abilene & So. Ry., 265 U.S. 274, 288 (1924). 427 Richardson v. Perales, 402 U.S. 389 (1971). 428 Londoner v. Denver, 210 U.S. 373 (1908). 429 FCC v. WJR, 337 U.S. 265, 274–77 (1949). See also Inland Empire Council v. Millis, 325 U.S. 697, 710 (1945). See Administrative Procedure Act, 60 Stat. 237 (1946), 5 U.S.C §§ 1001–1011. Cf. Link v. Wabash R.R., 370 U.S. 626, 637, 646 (1962), wherein the majority rejected Justice Black’s dissenting thesis that the dismissal with prejudice of a damage suit without notice to the client and grounded upon the dilatory tactics of his attorney, and the latter’s failure to appear at a pretrial conference, amounted to a taking of property without due process of law. and findings will not invalidate administrative proceedings where the record shows that at no time during the hearing was there any misunderstanding as to the basis of the complaint. 425 The mere admission of evidence which would be inadmissible in judicial proceedings does not vitiate the order of an administrative agency. 426 A provision that such a body shall not be controlled by rules of evidence does not, however, justify orders without a foundation in evidence having rational probative force. Hearsay may be received in an administrative hearing and may constitute by itself substantial evidence in support of an agency determination, provided that there are present factors which assure the underlying reliability and probative value of the evidence and, at least in the case at hand, where the claimant before the agency had the opportunity to subpoena the witnesses and cross-examine them with regard to the evidence. 427 While the Court has recognized that in some circumstances a ‘‘fair hearing’’ implies a right to oral argument, 428 it has refused to lay down a general rule that would cover all cases. 429 In the light of the historically unquestioned power of a commanding officer summarily to exclude civilians from the area of his command, and applicable Navy regulations which confirm this authority, together with a stipulation in the contract between a restaurant concessionaire and the Naval Gun Factory forbidding em- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00081 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1442 AMENDMENT 5—RIGHTS OF PERSONS 430 Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 900–01 (1961). Four dissenters, Justices Brennan, Black, Douglas, and Chief Justice Warren, emphasized the inconsistency between the Court’s acknowledgment that the cook had a right not to have her entry badge taken away for arbitrary reasons, and its rejection of her right to be told in detail the reasons for such action. The case has subsequently been cited as involving an ‘‘extraordinary situation.’’ Boddie v. Connecticut, 401 U.S. 371, 379 (1971); Goldberg v. Kelly, 397 U.S. 254, 264 n.10 (1970). Manifesting a disposition to adjudicate on non-constitutional grounds dismissals of employees under the Federal Loyalty Program, the Court, in Peters v. Hobby, 349 U.S. 331 (1955), invalidated, as in excess of its delegated authority, a finding of reasonable doubt as to the loyalty of the petitioner by a Loyalty Review Board which, on its own initiative, reopened his case after he had twice been cleared by his Agency Loyalty Board, and arrived at its conclusion on the basis of adverse information not offered under oath and supplied by informants, not all of whom were known to the Review Board and none of whom was disclosed to petitioner for cross-examination by him. The Board was found not to possess any power to review on its own initiative. Concurring, Justices Douglas and Black condemned as irreconcilable with due process and fair play the use of faceless informers whom the petitioner is unable to confront and cross-examine. In Cole v. Young, 351 U.S. 536 (1956), also decided on the basis of statutory interpretation, there is an intimation that grave due process issues would be raised by the application to federal employees, not occupying sensitive positions, of a measure which authorized, in the interest of national security, summary suspensions and unreviewable dismissals of allegedly disloyal employees by agency heads. In Service v. Dulles, 354 U.S. 363 (1957), and Vitarelli v. Seaton, 359 U.S. 535 (1959), the Court nullified dismissals for security reasons by invoking an established rule of administrative law to the effect that an administrator must comply with procedures outlined in applicable agency regulations, notwithstanding that such regulations conform to more rigorous substantive and procedural standards than are required by Congress or that the agency action is discretionary in nature. In both of the last cited decisions, dismissals of employees as security risks were set aside by reason of the failure of the employing agency to conform the dismissal to its established security regulations. See Accardi v. Shaughnessy, 347 U.S. 260 (1954). Again avoiding constitutional issues, the Court, in Greene v. McElroy, 360 U.S. 474 (1959), invalidated the security clearance procedure required of defense contractors by the Defense Department as being unauthorized either by law or presidential order. However, the Court suggested that it would condemn, on grounds of denial of due process, any enactment or Executive Order which sanctioned a comparable department security clearance program, under which a defense contractor’s employee could have his security clearance revoked without a hearing at which he had the right to confront and cross-examine witnesses. Justices Frankfurter, Harlan, and Whittaker concurred without passing on the validity of such procedure, if authorized. Justice Clark dissented. See also the dissenting opinions of Justices Douglas and Black in Beard v. Stahr, 370 U.S. 41, 43 (1962), and in Williams v. Zuckert, 371 U.S. 531, 533 (1963). 431 363 U.S. 420, 493, 499 (1960). Justices Douglas and Black dissented on the ground that when the Commission summons a person accused of violating a federal ployment on the premises of any person not meeting security requirements, due process was not denied by the summary exclusion on security grounds of the concessionaire’s cook, without hearing or advice as to the basis for the exclusion. The Fifth Amendment does not require a trial-type hearing in every conceivable case of governmental impairment of private interest. 430 Since the Civil Rights Commission acts solely as an investigative and fact-finding agency and makes no adjudications, the Court, in Hannah v. Larche, 431 VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00082 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1443 election law with a view to ascertaining whether the accusation may be sustained, it acts in lieu of a grand jury or a committing magistrate, and therefore should be obligated to afford witnesses the procedural protection herein denied. Congress subsequently amended the law to require that any person who is defamed, degraded, or incriminated by evidence or testimony presented to the Commission be afforded the opportunity to appear and be heard in executive session, with a reasonable number of additional witnesses requested by him, before the Commission can make public such evidence or testimony. Further, any such person, before the evidence or testimony is released, must be afforded an opportunity to appear publicly to state his side and to file verified statements with the Commission which it must release with any report or other document containing defaming, degrading, or incriminating evidence or testimony. Pub. L. No. 91–521, § 4, 84 Stat. 1357 (1970), 42 U.S.C. § 1975a(e). Cf. Jenkins v. McKeithen, 395 U.S. 411 (1969). 432 United States v. Ju Toy, 198 U.S. 253, 263 (1905). See also The Japanese Immigrant Case, 189 U.S. 86, 100 (1903). Cf. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950). 433 Shaughnessy v. United States ex rel. Mezel, 345 U.S. 206 (1953). The long continued detention on Ellis Island of a non-deportable alien does not change his status or give rise to any right of judicial review. In dissent, Justices Black and Douglas maintained that the protracted confinement on Ellis Island without a hearing could not be reconciled with due process. Also dissenting, Justices Frankfurter and Jackson contended that when indefinite commitment on Ellis Island becomes the means of enforcing exclusion, due process requires that a hearing precede such deprivation of liberty. Cf. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953), wherein the Court, after acknowledging that resident aliens held for deportation are entitled to procedural due process, ruled that as a matter of law the Attorney General must accord notice of the charges and a hearing to a resident alien seaman who is sought to be ‘‘expelled’’ upon his return from a voyage overseas. The Knauff case was distinguished on the ground that the seaman’s status was not that of an entrant, but upheld supplementary rules of procedure adopted by the Commission, independently of statutory authorization, under which state electoral officials and others accused of discrimination and summoned to appear at its hearings, are not apprised of the identity of their accusers, and witnesses, including the former, are not accorded a right to confront and cross-examine witnesses or accusers testifying at such hearings. Such procedural rights, the Court maintained, have not been granted by grand juries, congressional committees, or administrative agencies conducting purely fact-finding investigations in no way determining private rights. Aliens: Entry and Deportation.—To aliens who have never been naturalized or acquired any domicile or residence in the United States, the decision of an executive or administrative officer, acting within powers expressly conferred by Congress, with regard to whether or not they shall be permitted to enter the country, is due process of law. 432 Since the status of a resident alien returning from abroad is equivalent to that of an entering alien, his exclusion by the Attorney General without a hearing, on the basis of secret, undisclosed information, also is deemed consistent with due process. 433 The complete authority of Congress in the VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00083 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1444 AMENDMENT 5—RIGHTS OF PERSONS rather that of a resident alien. And see Leng May Ma v. Barber, 357 U.S. 185 (1958). 434 Oceanic Navig. Co. v. Stranahan, 214 U.S. 320 (1909). 435 Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920). See also Chin Yow v. United States, 208 U.S. 8 (1908). 436 United States v. Sing Tuck, 194 U.S. 161 (1904). See also Quon Quon Poy v. Johnson, 273 U.S. 352, 358 (1927). 437 Harisiades v. Shaughnessy, 342 U.S. 580 (1952). But this fact does not mean that a person may be deported on the basis of judgment reached on the civil standard of proof, that is, by a preponderance of the evidence. Rather, the Court has held, a deportation order may only be entered if it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true. Woodby v. INS, 385 U.S. 276 (1966). Woodby, and similar rulings, were the result of statutory interpretation and were not constitutionally compelled. Vance v. Terrazas, 444 U.S. 252, 266–67 (1980). 438 Zakonaite v. Wolf, 226 U.S. 272 (1912). See Jay v. Boyd, 351 U.S. 345 (1956), wherein the Court emphasized that suspension of deportation is not a matter of right, but of grace, like probation or parole, and accordingly an alien is not entitled to a hea

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