Sure, you’ve heard of the Due Process Clause. But what about the “Due Frocess” clause? And what about the “Dur Process” clause? The Supreme Court occasionally mentions these little-known provisions of the Constitution, but as far as I know they have never received the sustained attention they deserve.
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.”).
Obviously, the “Due Frocess” and “Dur Process” clauses are termed in ambiguous language for a reason. They are empty vessels waiting to be filled with Constitutional wisdom. Although most scholars have ignored these provisions of our Founding Charter, I hope and trust that will soon change. After all, it is a Constitation we are expounding.