Due Process and Public Health

33 Wendy E. Parmet Almost 800 years ago, King John at the Battle of Runnymede signed the Magna Carta. The Magna Carta promised among other things that, “No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined...except by the lawful judgment of his peers or by the law of the land.” That last clause, “the law of the land” clause, came down over the centuries to be used interchangeably with the term “due process of law”. But what does it mean? In an early and important English case, Dr. Bonham’s case,1 the great English jurist, Sir Edward Cook, gave a partial clue. Cook said the law of the land called for impartiality; someone ought not to be a judge in his own cause or in his own case. Decisions of law should be made with a degree of independence. Over time, other aspects of procedural fairness, including notice, an opportunity to be heard, and protection against arbitrary rule also became associated with due process of law. However, history suggests additional meanings for the law of the land or due process of law. One possible meaning was restraint upon the king. That was, after all, the lesson of the Magna Carta; parliamentary supremacythat the king would be under the law not above it. The law of the land clause also became associated with natural law, the view that there exists a law higher than the law of man or king. Natural law theory introduced the idea that certain rights are vested, they come from a higher law and cannot be taken away without natural law. From this jurists concluded that due process precluded taking property from one person, A, to give it to another, B. Although the roots to due process derived from English law, due process took on new significance when it appeared in written form in the U.S. Constitution. The 5th amendment in the Bill of Rights states that, “No person shall be deprived of life, liberty, or property without due process of law.” By placing the ancient concept of due process in a written constitution, the Framers bequeathed to the American people the possibility that courts, utilizing the judicial review permitted by Marbury v. Madison,2 could use the due process to strike down the acts of the legislature or the executive branch. However, in the early 19th century in Barron v. Baltimore, 3 the Supreme Court decided that the Bill of Rights applied only to the acts of the federal government. Thus, the due process clause of the 5th Amendment did not apply to actions of the states. The Civil War, however, changed the relationship of the federal government and the states and led to the adoption of the 14th Amendment which introduced a due process clause that now applies to the states. The 14th Amendment, Section 1, says, “Nor shall any state deprive any person of life, liberty, or property without due process of law.” This Amendment permitted federal courts to robustly review state actions to determine if they comported with due process and with the rule of law. For the first time, the police power of a state, which is the traditional power of the state to act on behalf of the public safety, health, and welfare of its citizens, had to comport with due process of law. The Supreme Court took full advantage of the 14th Amendment’s due process clause during the so-called Lochner4 era. This was the era of the great public health movement of the late 19th century and early 20th centuries when public health coalesced as a discipline. Cities and states began to create professionalized public health departments. During this era, there was a lot of new law, indeed a new activism on the Due Process and Public Health