THE
YALE
LAW
JOURNAL
VOLUMlE
66
JANUARY,
1957
NUMBER
3
METHODOLOGY
AND
CRITERIA
IN
DUE
PROCESS
ADJUDICATION-A
SURVEY
AND
CRITICISM
SANFORD
H.
KADISHi
THE
apparently
chaotic
array
of
Supreme
Court
decisions
on
the
due
process
requirements
of
the
Fifth
and
Fourteenth
Amendments
presents
an
imposing
challenge
to
anyone
who
would
formulate
a
unifying
rationale.
It
is
difficult,
for
example,
to
imagine
what
general,
systematic
principle
of
law
could
be
deduced
from
the
following
conclusions:
a
criminal
conviction
based on
a
confession
obtained
by
physical
and mental
coercion
violates
due
process
re-
gardless
of
its testimonial
reliability,"
but
a
conviction
based
on
incriminating
evidence
obtained
by
acts
concededly
violative
of
the
due
process
clause
is
not
itself
violative
of due
process;2
the
privilege
against
self-incrimination
3
and
the
right
to
be
free
of
convictions
based
upon
unconstitutional
searches
and
seizures
4
are
not
protected
by
due
process
of
law,
but
a
conviction
for
illegally
possessing
narcotics
based
on
the
evidential
use
of
narcotics
unwillingly
pumped
out
of
the
accused's
stomach
does
violate
due
process
;5
the
use
of illegally
ob-
tained
evidence
to
procure
a
conviction
is
not
violative
of
due
process
when
the
illegality
consists
of
breaking
into
the
accused's
office
and
rifling
through
his
papers,
0
but
does
violate
due process
(at
least
in
the
eyes
of two
members
of
the
Court)
when
the
illegality
consists
of
repeated
and unauthorized
entries
for
the
purpose
of
installing
a
microphone
and
stringing
wires
to
a
neighbor-
ing
garage
;7
due process
is
violated
by
the
denial
of
an
opportunity
for
the
accused
to
retain
counsel,
s
but
not
(necessarily)
by
the
denial
of
an
opportunity
to
have
counsel
appointed
where
a private
retainer
is
financially
impossible.
9
tProfessor
of Law,
College
of
Law,
University
of
Utah;
Fulbright
Visiting
Professor,
University
of
Melbourne,
School
of
Law,
1956-57.
1.
See, e.g.,
Watts
v.
Indiana,
338
U.S.
49
(1949);
Haley
v.
Ohio,
332
U.S.
596
(1948);
Malinski
v.
New
York,
324
U.S.
401
(1945).
2.
Wolf
v.
Colorado,
338
U.S.
25
(1948).
3.
Adamson
v.
California,
332
U.S.
46
(1947)
;
Twining
v.
New
Jersey,
211
U.S.
78
(1908).
4.
Wolf
v.
Colorado,
338
U.S.
25
(1948).
5.
Rochin
v.
California,
342
U.S.
165
(1952).
6.
Wolf
v.
Colorado,
338
U.S.
25
(1948).
7.
Irvine
v.
California,
347
U.S.
128, 142
(1.954)
(Frankfurter
and
Burton
dissenting
opinion).
8.
Powell
v.
Alabama,
287
U.S.
45
(1932).
9.
Bute
v.
Illinois,
333
U.S.
640
(1948)
;
Betts
v.
Brady,
316
U.S.
455
(1942).
HeinOnline -- 66 Yale L.J. 319 1956-1957
THE
YALE
LAW
JOURNAL
It
may
well
be
wisdom
to
recognize
that
the
definition
of
procedural
due
proc-
cess
is
not
susceptible
of confinement
within
a
formula. And
the
keynote
struck
by
the
Supreme
Court
in
1877
that
the meaning
of
due
process
must
be de-
termined
only
by
a
"gradual
process
of
inclusion
or
exclusion"'
1
surely
is
in
the
best
pragmatic
tradition. Yet,
in
the
interest
of
assaying
the
possibilities
of
rational
and
deliberative
constitutional
adjudication,
the
diverse
array
of
Supreme
Court
holdings fairly
prompts
the
questions:
By
what
principle
is
it
determined
or
determinable
what
procedures are
or
are
not
consistent
with
due
process?
Is
there
a
"rationalizing
principle"
that
serves
to
give
"proper
order
and
coherence"
to
these
adjudications?"
Conceding
that
it
is
in
the
nature
of
this
constitutional
provision
that
all-
embracing
definitions
are
impossible,
it
is
nonetheless
germane
in
a
rational
inquiry
to ask
through
what
intellectual
process
determinations
have
been
or
should
be
made.
It
may
be
that
those
critics
are
correct
who
deny
the
ex-
istence
of
any
"right"
decision
and
who view
the
basis
of
constitutional
ad-
judication
as
no
more
than
the
personal
predeliction,
the
subjective
preference
of
the
justices
who
make
the
decisions;
but
the
possibilities
of
human
intelli-
gence
should
not
be
too
quickly dismissed.
Likewise
in
a
tradition
of
aration-
ality
are
the
critics
of reason
of
another
school
who
insist
that
"right"
decisions
are
reachable
and
often
reached
but
only
through
the
ineffable
grouping
of
the
minds
of
good men
directed by
an
extra-rational
magnetism
inherent
in
the order
of
things.
For
to
assert
that
right
conclusions
are
capable
of
being
reached in
concrete
cases
by
subjective
evaluation,
but that
objective
analytical
generalizations
of
the
specifications
for
determining
right
decisions
are
impossible, is
tantamount
to
denying
the
basic
postulate
of
reason
and
scientific
method.
In
any event,
whether
doomed
to
failure
at the
outset
or
not,
the
purpose
of
what
follows
is
to
undertake
some
preliminary
explorations
into
the
possibilities
of
rational
decision-making
in
the
area
of
procedural
due
process.
The
first
two
sections
of
this
Article
are
devoted
to
an
examination
of
the
means
that
have
been
employed
by
the
Supreme
Court
to
give
meaning
to
procedural
due
process.
The
objective
in
these
pages
is
to
describe
rather
than
to
evaluate.
The
first
section
purports to
identify
two
basic
themes
that
have
historically characterized
attempts
to give
meaning
to
due
process-fixity
and
flexibility.
The
second
section
is
concerned
with
further
inquiry
into
what
has
become
the
prevailing
view-the
concept
of
a
flexible
due process.
Here
the
objective
is
to
classify
and
describe
the
means
employed
by
the
Court
in
10.
Davidson
v.
New
Orleans,
96
U.S.
97,
104
(1877).
11.
Cf.
Cardozo,
J.,
in
Palko
v.
Connecticut,
302
U.S.
319,
325
(1937):
"The
line
of division
may
seem
to
be
wavering
and
broken
if
there
is
a
hasty
catalogue
of
the
cases
on
the
one
side
and
the
other.
Reflection
and
analysis
will
induce
a
different
view.
There
emerges
the
perception
of
a
rationalizing
principle
which gives
to
discrete instances
a
proper
order
and
coherence
....
[The
inclusion
and
exclusion]
has
not
been
arbitrary or
casual.
It
has
been
dictated
by
a
study
and
appreciation
of
the
meaning,
the
essential implications,
of
liberty
itself."
[Vol.
66
:319
HeinOnline -- 66 Yale L.J. 320 1956-1957
DUE
PROCESS
ADJUDICATION
shaping
an evolving
and
expanding
due
process.
The
premise
is
that
by
and
large
the
Court
has
not
been
content
to
rest
upon
a
frankly
avowed
subjective
choice,
but
rather
has
attempted
to
rest
choice
upon
criteria
outside
its per-
sonal
idiosyncratic
judgment.
The
remaining
pages
of
the
Article are
directed
to
a
critical
appraisal
of
the
problems
described in
the
first
two
sections.
The
third
section picks
up
the controversy
between
a
fixed
versus
a
flexible
due
process
described
in
the
first
section.
In
the
first
part
the thesis
is
presented
that
a
fixed
due process
is
fundamentally
unattainable.
Attempts
to
achieve
it
have
at
best
only
dis-
guised
the
fact
that
the
problem
inherently
entails
a
choice
of
values.
In
actu-
ality,
they
have
only
divorced
the
process
of
choice
from
the
discipline
of
intellectual
candor and
rational
analysis.
The
second
part
of
this
section
elabo-
rates
the
thesis
that,
apart
from
attainability,
a
fixed
due
process
is
undesirable
-only
a
flexible
due
process
responsive
to
the
demands
of
new
contexts
ex-
amined
in
light
of
reason
and experience
is
compatible
with
the proper
role
of
the
due
process
clause
in
the
written
constitution
of
a
nation
committed
to
judicial
review.
The
fourth
section picks
up
the
problem
raised
in
the
second
section-the
development
of
standards
to
direct
the
process
of
signifying mean-
ings
of
a
flexible
due
process.
The
first
part
of
this
section
is
devoted
to
an
analysis
of
the
nature
of
the
inquiry
posited
by
the
demands
of
a
flexible
due
process,
apart
from
the limitations
imposed
by
the
character
of
institutions
responsible
for making
the
final
determinations.
It is
the
premise
of
this
section
that
the predicament
imposed
by
a
flexible
due
process is
not
entirely
hopeless;
the
condition
can
be
improved
through
the
use
of
the
methods
of
ration-
al
inquiry,
since
the
impasse
created
is
usually
the
product
of
an
inadequate
formulation
of
the
relevant
questions
rather
than
the
nature
of
the
problem.
The
second
part
of
the fourth
section concerns
itself
with
the
institutionalized
tech-
niques
of
decision-making
in
this
area
(specifically,
judicial
review)
that
impose
limits
upon
the
extent
to which
full
rational
inquiry
can
be
undertaken
practically.
FIXITY
VERSUS
FLEXIBILITY
IN
DUE
PROCESS
SIGNIFICATION-A
DESCRIPTION
The
quest for
fixity
and
the
quest for
flexibility
have
been
the
two
dominant
motifs
in
the Supreme
Court's
search
to
give
meaning
to
procedural
due
pro-
cess.
So long as
the
ever-present
danger
of
oversimplification
in
such
categori-
zations
is
not
forgotten
it
will
be
useful to
examine
the
Court's
thinking
in
terms
of
these
polar
attributes.
Fixed
Due
Process
Of
the
relatively
few
cases
prior
to
the
Fourteenth
Amendment
that
ex-
amined
the
problem
12-in
terms
of
the
due
process
clause
of
the
Fifth
Amend-
ment
directed
against
Congress-Den
ex
dent.
Murray v.
Hoboken
Land
&
Im-
12.
See
Davidson
v.
New
Orleans,
96
U.S.
97,
103-04
(1877).
1957]
HeinOnline -- 66 Yale L.J. 321 1956-1957
THE
YALE
LAW
JOURNAL
provement
Co.
13
is
one
of
the
earliest
to have
developed
a
due
process
of
fixed
meaning.
The
issue
involved
the
validity
of
treasury
distress
warrants
pur-
suant
to
which
property
of
a
defaulting
taxpayer
was
seized
and
sold
by
the
United States
marshall without judicial
proceedings.
Finding
in
the
Consti-
tution
"no
description
of
those
processes which
it
was
intended
or
allowed
or
forbid"
or
even
"what
principles
are
to
be
applied
to
ascertain whether
it
be
due
process,"
the
Court formulated
two
principles
for
determining
due
process:
first,
examine
whether
the
process is in
conflict
with any
of
the
provisions
of
the
Constitution
itself;
second,
"If
not
found
to
be
so,
we
must
look
to
those settled
usages
and
modes
of
proceeding
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."
14
The
methods
of
legal
historical
research
thus
became
the
key
tool in
constitu-
tional
interpretation;
if
the
search
in
the
facts
of
the
particular
case
yielded
the
conclusion
that
the
processes in
issue
did "not
differ
in
principle
from
those
employed
in
England
from
remote
antiquity-and
in
many
of
the
States,
so
far
as
we
know,
without
objection-for
this purpose,
at
the
time
the
Con-
stitution
was
formed,"'
5
it
followed
that
the
procedure
was
consistent with
due process.
In
1884
the
Supreme Court
in
Hurtado
z.
California"
limited
Murray's
absolute
commitment
to
the
uses
of
history.
In
sustaining under
Fourteenth
Amendment
due
process
California's
innovation
of
the
criminal
information,
the
Court
stated
that
Murray
must
mean
only
that
a
process sanctioned
by
immemorial
usage
necessarily
is
due
process;
and
not
that
a
process
not
so
sanctioned
necessarily
is
inconsistent
with
due
process.'
7
"Immemorial
usage"
as a
single
determinative
test
18
for
defining
due
pro-
cess
has
over
the
years on
various
occasions
commended itself to
a
majority
of
the
Court
or
to
individual
justices.
Justice
Harlan,
dissenting
in
Hurtado,"'
inquired
into
the
settled
usages
and
modes
of
procedure
prior
to
the
adoption
of
the
Constitution-making
the
point
that
"no
other
inquiry
is
at
all
per-
tinent"
20
-and
found
the
absence
of
the
historical use
of
the information
in
capital
offenses
conclusive
of
its
inconsistency
with
due
process.
In
1896
the
standard
of
"substantial
accord
with
the
law
and
usage
in
England
before
the
13.
59
U.S.
(18
How.)
272
(1855).
14.
Id.
at
277.
The
precursors of
this
doctrine
are
discussed in
Morr,
DuE
PRoCFSs
OF
LAW
241-42
(1926).
15.
59
U.S.
(18
How.)
at
277.
16.
110
U.S.
516
(1884).
17.
Id.
at
528-29.
18.
For
other
uses
of
history
see
discussion in
text
at
pp.
353-57
infra.
19.
110
U.S.
at
538.
20.
Id.
at
543.
See
his
dissenting
opinion in
Maxwell
v.
Dow,
176
U.S.
581,
605,
613-
14
(1900),
embodying
the
same
reasoning
as
to
a
criminal
jury
of
less
than
twelve.
[Vol.
66:319
HeinOnline -- 66 Yale L.J. 322 1956-1957
DUE
PROCESS
ADJUDICATION
Declaration
of
Independence,
and
in this
country
since
it
became
a
nation"
was
made
to determine
the
validity
of
a
procedure
requiring a
prosecutor
to
furnish
costs
if
the
jury
trying
the
case
found
that
the
prosecution
was
instituted
without
probable
cause
and
with
malicious
motives.
21
In
Ownbey
v.
Morgan
2
2
the Court, on the
authority
of
the
Murray
principle, found historical
English
practice
conclusive
of
the
validity
of
a
procedure
that
required
a
nonresident
defendant
whose
property
was
attached
to give
security
for
the
discharge
of
the
property
seized
as
a
condition
of
appearing
and
defending.
23
A
procedure
whereby
the
accused
was
tried
before
a
mayor
whose
compensation
derived
from
the
fine
imposed was held
inconsistent
with
due
process
in
Tumey
v.
Ohio,
24
largely
in
view
of
its
inconsistency
with
historical
English
practice.
A
second
exemplification
of
the
fixity motif
is
found
in those
cases
that
identified
the
requirements
of
due
process
with
a fair
trial,
defined
to
mean
jurisdiction,
notice
and
opportunity
to
be
heard,
in
accordance
with
generally
established
procedure
for
the
trial
of
cases.
25
One
of
the
earlier statements
of
this
position
is
the
classic
phrasing
of
Mr.
Webster
in
Dartmouth
College
v.
Woodward
:26
"By
the
law
of
the land
is
most
clearly
intended
the
general
law;
a
law,
which
hears
before
it
condemns;
which proceeds
upon
inquiry,
and
renders
judgment
only
after
trial.
'2 7
The
Court
in
Davidson
v.
New
Orleans
28
in
sustaining
a
real
estate
development
assessment
without
judicial
proceedings
stated
a
typical
formulation
of
this
view:
"[I]t
is
not
possible
to
hold
that
a
party
has,
without
due
process
of
law,
been
deprived
of
his
property,
when,
as
regards
the
issues
affecting
it,
he
has,
by
the
laws
of
the
State, a
fair
trial
in
a court
of
justice,
according
to
the
modes
of
proceeding
applicable
to
such
a
case."
'2 9
21.
Lowe
v. Kansas,
163
U.S.
81,
85 (1896).
22.
256
U.S.
94
(1921).
23.
"A
procedure
customarily
employed,
long before
the
Revolution,
in
the
commer-
cial
metropolis of
England,
and
generally
adopted
by
the
states
as
suited
to their
circum-
stances and
needs,
cannot be
deemed
inconsistent
With
due
process
of
law....
."
Id.
at
1.11.
24.
273
U.S.
510
(1927).
25.
"Due
process
requires
that
the
court
which
assumes
to
determine
the
rights
of
parties
shall
have
jurisdiction . . .
and
that
there
shall be
notice
and
opportunity
for
hearing
given
the
parties
. . . .
Subject
to
these two
fundamental
conditions,
which
seem
to
be
universally
prescribed
in
all
systems
of
law
established
by civilized
countries,
this
court
has
up
to
this time
sustained
all
state
laws,
statutory
or judi-
cially
declared,
regulating
procedure,
evidence
and
methods
of
trial
and
held
them
to
be consistent
with
due
process
of
law...
!'
Twining
v.
New
Jersey,
211
U.S.
78,
110-11
(1908).
26.
17
U.S.
(4
Wheat.)
*518 (1819).
27.
Id.
at
*581.
28.
96
U.S.
97 (1877).
29.
Id.
at
105.
See
also
Frank
v.
Mangum,
237
U.S.
309, 340
(1915)
;
Kennard
v.
Louisiana
ex
rel.
Morgan,
92
U.S.
480
(1876).
This
development
is
traced
in
MoT,
DuE
PROCESS
OF
LAW
§
88
(1926).
See
also
Warren,
The
New
"Liberty"
Under
the
Fourteenth
Amendmwnt,
39
H.Av.
L.
REv.
431,
440
(1926).
1957]
HeinOnline -- 66 Yale L.J. 323 1956-1957