A Case Study in the Signification of Procedural Due Process — Institutionalizing the Mentally Ill
| DOI | 10.1177/106591295600900110 |
| Date | 01 March 1956 |
| Published date | 01 March 1956 |
| Author | Sanford H. Kadish |
| Subject Matter | Articles |
93
A
CASE
STUDY
IN
THE
SIGNIFICATION
OF
PROCEDURAL
DUE
PROCESS —
INSTITUTIONALIZING
THE
MENTALLY
ILL
SANFORD
H.
KADISH
University
of
Utah
HE
INTERPRETATION
of
the
due
process
clause
in
its
procedural
aspect
has
constituted
a
fertile
area
of
constitutional
controversy,
at
’*’
least
since
the
classic
exposition
in
Hurtado
v.
California
in
18841
The
controversy
has
centered
not
only
upon
the
ascertainment
of
the
pro,
cedures
required
and
the
kinds
of
adjudications
in
which
due
process
is
operative,
but
likewise
upon
the
nature
of
the
principles
appropriate
for
making
determinations
of
such
issues.
While
Justice
Cardozo
in
1937
felt
able
to
find
the
&dquo;rationalizing
principle&dquo;
which
gave
&dquo;proper
order
and
coherence&dquo;
to
the
determinations
made
up
to
that
time,2
the
array
of
apparently
disordered
determinations
since
that
date
would
no
doubt
give
pause
to
one
contemplating
a
similar
effort
today.
In
the
matter
of
deriving
standards
for
giving
meaning
to
due
process
the
chief
competing
themes
have
been
fixity
versus
flexibility.
The
quest
for
fixed
meanings
has
pro-
ceeded
chiefly
through
a
search
for
the
intent
of
the
framers
through
ex-
amination
of
the
ancient
English
practices
which
were
not
rejected
by
the
colonies,3
or
through
complete
identification
of
due
process
with
the
more
or
less
explicit
procedural
safeguards
of
the
first
eight
amendments
of
the
Federal
Constitution.4
4
Grounds
for
giving
signification
to
a
flexible
due
process
have
included
a
resort
to
&dquo;natural
law,&dquo;5
to
ascertainment
of
the
procedures
&dquo;implicit
in
the
concept
of
ordered
liberty,&dquo;
6 and
to
the
judg-
ments
already
made
by
significant
segments
of
democratic
society,
ours
as
well
as
others,
as
evidenced
in
accepted
practices,
statutes,
constitutions
and
judicial
decisions.7
1
110
U.S.
516
(1884).
2
Paiko
v.
Connecticut,
302
U.S.
319,
325
(1937).
3
See,
e.g.,
Den
ex
dem.
Murray
v.
Hoboken
Land &
Improvement
Co.,
18
How.
272,
277
(U.S.
1855);
Lowe
v.
Kansas,
163
U.S.
81,
85
(1896);
Ownby
v.
Morgan,
256
U.S.
94,
111
(1921).
4
See,
e.g.,
Harlan,
J.,
dissenting
in
O’Neil
v.
Vermont,
144
U.S.
323,
367
(1892);
Maxwell
v.
Dow,
176
U.S.
581,
605
(1900);
Twining
v.
New
Jersey,
211
U.S.
78
(1908);
and
Black,
J.,
dissenting
in
Adamson
v.
California,
332
U.S.
46,
68
(1947).
5
See
Adamson
v.
California,
332
U.S.
46,
59,
61
(1947),
concurring
opinion;
332
U.S.
at
68,
77,
dissenting
opinion.
6
Palko
v.
Connecticut,
302
U.S.
319,
325
(1937).
7
See,
e.g.,
Betts
v.
Brady,
316
U.S.
455
(1942);
Wolf
v.
Colorado,
338
U.S.
25
(1940);
Solesbee
v.
Balkcom,
339
U.S.
9,
14
(1950),
dissenting
opinion;
Leland
v.
Oregon,
343
U.S.
790
(1952).
94
Certainly
the
evolvement
of
new
impasses
in
contemporary
society
be-
tween
governmental
authority
and
procedural
freedom
has
accentuated,
rather
than
diminished,
the
importance
of
these
problems.
Primarily,
these
current
situations
arise
out
of
two
developments.
The
first
involves
the
use
of
attenuated
procedures
directed
toward
insulating
disloyal
or
subversive
persons
from
certain
areas
of
American
life,
pursuant
to
the
demands
of
a
security
program
in
a
hostile
world,
as
in
the
federal
employee
loyalty
program,8
some
congressional
investigations,9
and
alien
exclusion
proceed.
ings.10
The
second
involves
a
similar
attenuation
of
traditional
due
process
procedures
in
order
to
fulfill
more
effectively
the
rehabilitative
aims
of
certain
social
legislation.
These
innovations
have
largely
rested
upon
the
evidence
of
medical
and
social
scientists
that
the
full
panoply
of
judicial
procedures
is
inconsistent
with
the
attainment
of
the
objectives
of
such
measures
as
the
juvenile
delinquency
laws~~
and
laws
concerned
with
the
care
and
cure
of
the
mentally
ill.
Eschewing
a
broad
inquiry
into
the
various
problems
raised
in
applying
due
process
in
changing
contexts,
it
may
serve
some
purpose
to
examine
the
possibilities
of
achieving
meanings
in
due
process
within
the
narrow
com-
pass
of
one
particular
contemporary
context;
specifically,
the
one
last
men-
tioned
-
procedures
for
the
involuntary
institutionalization
of
the
mentally
ill.
The
problem
is
particularly
acute
in
this
context
since
the
ultimate
challenge
is
the
indispensability
of
the
perennial
attributes
of
traditional
due
process
-
advance
notice
and
an
opportunity
to
be
heard.
The
central
problem
arises
out
of
the
effect
of
mental
disorder
upon
the
ability
of
the
person
afflicted
to
make
responsible
decisions
concerning
his
need
for
institutionalized
treatment.
In
many
instances
the
medical
inter,
ests
of
the
individual
and
the
larger
interests
of
society
require
the
hospi,
talization
of
an
individual.
But
through
what
procedures
should
individual
determinations
of
the
need
for
treatment
be
made when
the
individual
himself,
often
as
a
result
of
his
disorder,
is
not
a
willing
participant
in
his
hospitalization?
Were
the
end
of
commitment
the
singular
one
of
putting
out
of
harm’s
way
a
person
dangerous
to
society,
the
traditional
con-
8
See
Bailey
v.
Richardson,
182
F.2d
46
(D.C.
Cir.
1950)
a’ffd
per
curiam
341
U.S.
918
(1951);
Joint
Anti-Fascist
Refugee
Committee
v.
McGrath,
341
U.S.
123
(1951),
especially
concurring
opinions
of
Frankfurter,
J.,
at
149,
Douglas,
J.,
at
174
and
Jack-
son,
J.,
at
183;
Peters
v.
Hobby,
75
S.
Ct.
790,
800
(1955),
concurring
opinion.
9
See
Robert
K.
Carr,
The
House
Committee
on
Un-American
Activities
(Ithaca:
Cornell
University
Press,
1952),
p.
452;
A.B.A.
Special
Committee
on
Individual
Rights
as
Affected
by
National
Security,
Report
on
Congressional
Investigations
(1954),
and
Appendix
to
Report
on
Congressional
Investigations
(1954).
10
See
Shaughnessy
v.
U.S.
ex
rel.
Mezei,
345
U.S.
206
(1953);
U.S.
ex.
rel.
Knauff
v.
Shaughnessy,
338
U.S.
537
(1950).
11
See
In
re
Holmes,
379
Pa.
599,
100
A.2d
523
(1954);
Dendy
v.
Wilson,
142
Tex.
460,
179
S.W.
2d
269
(1944);
People
v.
Lewis,
260
N.Y.
171,
183
N.E.
353
(1932);
Sol
Rubin,
"Protecting
the
Child,"
43
J.
Crim.
L.
427
(1952);
1
How.
L.J.
277
(1953).
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