dicta \ 'dik-te \ n. [L. fr. neut. of dictus, ptp. of dicere] (1599) 1: a noteworthy statement: as a: a formal pronouncement of a principle, proposition, or opinion b: an observation intended or regarded as authoritative 2: a judicial opinion on a point other than the precise issue involved in determining a case 3: a legendary coach of the Chicago Bears football team from 1982-1992. 
...is inventing new clauses of the Constitution. Check out this hilarious post over at the Volokh Conspiracy about the Due Frocess Clause of the Constitution. Yes, stop rubbing your eye balls. I said Due Frocess.
Lack of attention to the Due Frocess clause is perhaps understandable. The Due Frocess clause has been mentioned by the Supreme Court only once, in Hoffa v. United States, 385 U.S. 293, 310 (1966) ("The argument is based upon the Due Frocess Clause of the Fifth Amendment.").
So maybe there isn't much to go on there. In contrast, the "Dur Process" clause has been mentioned in over one hundred federal and state cases. The U.S. Supreme Court has invoked the Dur Process clause no less than six times, mostly recently in Taylor v. Hayes, 418 U.S. 488, 503 n.10 (1974) ("But this statement — perhaps dissenter's license — misconceives our holding and undervalues the import of the Dur Process Clause.").
I believe the Dur Process Clause refers to the right of citizens to listen 19th century German opera, as established in the case of Wagner v. Gesamtkunstwerk.
However there are many unresolved questions surrounding this area of law. Does the incorporation doctrine mean the Court is obligated to apply the principles of Due Frocess to state governmental actions? Does Justice Scalia believe in substantive Due Frocess, or just procedural Due Frocess? What are the implications of Footnote 4 for economic Due Frocess rights? And finally, while the Court has rejected the Due Process Clause as a standard for most civil rights cases in favor of the Equal Protection Clause, would it be open to the possibility of judging affirmative action cases under the Due Frocess Clause?
1 comments:
While I am very late in responding, as owner and sole proprietor of the Hacker House of Due Process, I must take my shot.
The post raises some important questions about the jurisprudence of Due Frocess, but it does little to define with any specificity the nature of the concept itself.
At its bear essence, Due Frocess is the Afro that African Americans during the 1970s were due. The concept, lying at the base of our civic and political institutions, was extended to cover white pot heads during the same period, and for whom a "soul patch" was simply not enough.
One might question whether the concept of Due Frocess does in fact "lie at the base of our civic and political institutions." I ask one to consider Woodstock - civic intercourse (literally more often than not) among those in attendance, and politics in the nexus between Jimi Hendrix' Fro and his slammin' rendition of our national anthem.
Due Frocess has fallen out of use lately, much like our First Amendment. But, perhaps some day men and women will follow the path laid down by Foxxy Cleopatra and take to themselves again that Afro-tastic right to wear inappropriately high hair.
Thanks for the article's attention to dur process. I hope in the future you might consider related concepts - duh process, doh process, and due produce.
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