History of Due Process
The history of due process from the adoption of the U.S. Constitution to the present illustrates historical strides in efforts to present the nation with a constitution that can serve the interests of its diverse population. The birth of the United States’ constitution draws us back to the era of the first government of the United States of America under the Articles of Confederation and Perpetual Union. On February 21, 1787, a constitutional convention drew state delegates in Philadelphia to propose a plan for an effective government and revise the Articles of Confederation. The ratification of the document presented from the Philadelphia convention demanded two-thirds support of all states. However, the new constitution was eventually ratified in May 1970 in Rhode Island.
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The intense desire to create a functional government saw deliberations for the enactment of a new constitution begin in earnest on May 25, 1787. Several amendments were injected into the Articles of Confederation and Perpetual Union to end the long-standing stalemates between patriots and nationalists. “On December 7, 1787, Delaware became the first state to ratify the constitution through a unanimous vote” (Wood, 1998). On September 13, 1788, the Continental Congress made a bold step in enacting and a new constitution and putting it into operation. However, the United States constitution has undergone drastic amendments to accommodate new challenges and ensure equal representation of all citizens regardless of race, color, ethnicity, and language.
Trespass and Privacy Doctrine
A definition of the two terms provides a good starting point in examining the similarities and differences between the two terms. According to Berger (1989), Hudson (2002), and Bond (1997), “the trespass doctrine provides power to search officer to physically invade constitutionally protected areas, which include persons, houses, papers, and effects.” The trespass doctrine was replaced by the privacy doctrine, which focused on protecting people from unjust privacy intrusions and searches without due regard to privacy issues. This was a result of complexities in the inabilities to differentiate between the effective performance of duty and blatant violation of the right to privacy.
The underlying similarity between the trespass doctrine with the privacy doctrine is that both seek to ensure that “the government has enough power to protect its people by having access to evidence it requires to control crime” (Fritz, 2008).
The difference between the two doctrines revolves around the fact that the privacy doctrine focuses more on protecting the privacy of individuals. In theory, the privacy doctrine places the powers of the government in check. According to Pritchett (1959), privacy and liberty form two values at the heart of a free society. The balance of interest generated by the two doctrines focuses on the need to protect the nation from criminal activities and meet the special needs of the people beyond criminal law enforcement.
Berger, R. (1989). The Fourteenth Amendment and the Bill of Rights. Norman: University of Oklahoma Press.
Bond, J. E. (1997). No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment. Westport, Conn.: Praeger.
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Fritz, C. G. (2008). American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War. Cambridge: Cambridge University Press.
Hudson, D. L. (2002). The Fourteenth Amendment: Equal Protection Under the Law. Berkeley Heights, N.J.: Enslow Publishers. Curtis, M. K. (1986). No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham, N.C.: Duke University Press.
Pritchett, C. H. (1959). The American Constitution. New York: McGraw-Hill.
Wood, G. (1998). The creation of the American Republic, 1776-1787. Chapel Hill: University of North Carolina Press.