Due Process of Law

views updated May 11 2018


DUE PROCESS OF LAW encompasses several doctrines of U.S. Constitutional law protecting important liberties from limitation and requiring that citizens only be deprived of rights or property through valid and fair procedures.

These doctrines are rooted in the common law, state constitutions, the Bill of Rights, and the Fifth and Fourteenth Amendments. The Fifth Amendment limits the national government: "No person shall … be deprived of life, liberty, or property, without due process of law." Section one of the Fourteenth Amendment correspondingly binds the states. Constitutions in the fifty states incorporate similar requirements.

Due process of law has many sources. It is a descendent of the Aristotelian idea of the rule of law, that the best state is one governed by laws rather than by men. It is rooted in a requirement of Magna Carta, accepted by King John in 1215 and finally confirmed in 1297 by Edward I. Chapter 29 (chapter 39 in 1215) states,

"No Freeman shall be taken, or imprisoned, or be disseised [dispossessed] of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right."

This formula was restated in a statute of 1354, which declared "no man … shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." The influence of Magna Carta in English law, however, was not great during the later feudal age.

The influence of Magna Carta and chapter 39 revived in England just before the founding of the English colonies in America. In a series of opinions from the bench, English judges—particularly Sir Edward Coke, Chief Justice under James I—argued according to Magna Carta and "the ancient constitution" it enshrined that law must be based in courts alone, that judges must be independent from executive influence, and that neither King, Church, nor sheriffs could enter houses without warrants, raise taxes without Parliament, or make arrests not according to the law. These arguments were printed in Sir Edward Coke's Reports of Cases, in his Second Institute of the Laws of England, and in the Petition of Right, which he wrote and which passed Parliament in 1628. Coke's Reports and Institutes were the standard books for students and lawyers in the American colonies and early republic. In his Second Institute commentary on Magna Carta, Coke equated the "law of the land" with "due process of law," and so due process was made to encompass the broadest meaning of the common law, a meaning accepted both by Sir William Blackstone in his Commentaries and by the lawyers of colonial and early federal America. Perhaps more importantly, the Petition of Right was reaffirmed in the English Bill of Rights of 1689, which became a model for colonists who wrote similar provisions into colonial charters and for Americans seeking a Bill of Rights.

Thomas Jefferson's Lockean understanding of the state was a further influence. In 1690 John Locke wrote his Second Treatise, which much impressed the founding generation. Man in a state of nature, Locke argued, was free "to preserve his property—that is, his life, liberty, and estate," from the deprivations of others, judging them as he sees fit. But man in political society must cede this power to the community. The community's legislature was limited only by an obligation that Locke derived from natural law, although it echoed the common-law maxim, salus populi suprema lex ("the welfare of the people is the highest law"): "Their power in the utmost bounds of it is limited to the public good of the society." Such sentiments reverberated in Baron de Montesquieu's Spirit of the Laws (1748). It was this philosophical tradition that informed Thomas Jefferson's assertion in the Declaration of Independence that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." The first abuse of the Crown Jefferson listed to justify rebellion was that the king had "refused his Assent to Laws, the most wholesome and necessary for the public good."

These two strains of thought—the revived Magna Carta and a belief in "the rule of law to the good of the people"—influenced the early constitutions of the independent American states. For example, the Connecticut Constitutional Ordinance of 1776 required,

"That no Man's Life shall be taken away: No Man's Honor or good Name shall be stained: No Man's Person shall be arrested, restrained, banished, dismembered, nor any Ways punished, No Man shall be deprived of his Wife or Children: No Man's Goods or Estate shall be taken away from him nor any Ways indamaged under the Colour of Law, or Countenance of Authority; unless they be clearly warranted by the Laws of this State."

Virginia's Declaration of Rights required that "no man be deprived of his liberty except by the law of the land, or the judgment of his peers."

During the ratification debates of the 1780s, the agreement famously reached among sponsors and critics of the proposed constitution was struck following ratification of a bill of individual rights. When James Madison introduced the Bill of Rights, he drew its provisions primarily from proposals by the various states, four of which—New York, North Carolina, Virginia, and Pennsylvania—had proposed that no person be deprived of liberty except according to the law of the land or according to due process of law. Madison included a "due process of law" provision, based on New York's submission and reflecting its constitution. The Fifth Amendment was adopted and ratified with little debate.

Cases in the Supreme Court under the Due Process Clause were rare and initially limiting of its scope. In The Schooner Betsy, 8 US 443 (1807), Chief Justice Marshall ruled that the seizure of a vessel did not require a jury trial to ensure due process, because such cases are considered in admiralty court, which does not require a jury. In United States v. Bryan and Woodcock, 13 US 374 (1815), the Court rejected an argument that due process was violated by federal claims against the estate of a dead bankrupt. The most important limit to the amendment, however, was the Court's rebuff of attempts to bind the states to its terms (see Barron v. Baltimore, 32 US 243 [1833]; Withers v. Buckley, 61 US 84 [1857]).

The first constructive applications of due process in the Court were a passing comment by Justice William Johnson that Magna Carta was "intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice" (Bank of Columbia v. Okely, 17 US 235 [1819]), and a reference by Justice Joseph Story to arguments that the state could limit the privileges of a college with a royal charter only pursuant to due process of law. In the latter case, Trustees of Dartmouth College v. Woodward, 17 US 518 (1819), Story agreed with the argument of Daniel Webster, who had argued that due process, or law of the land, is "the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society." This definition was widely accepted. (See Thomas M. Cooley's Constitutional Limitations, 1868.)

The earliest cases in which the Fifth Amendment limited Congressional action involved attempts to enforce the rights of slaveholders. Justice Baldwin, dissenting in a case construing state slavery laws, noted that state laws define what is property, even including slaves, so that "under the fifth amendment of the Constitution, these rights do not consist merely in ownership; the right of disposing of property of all kinds, is incident to it, which Congress cannot touch" (Groves v. Slaughter, 40 US 449 [1841]). This view that due process limited not only how a right may be lost but also what rights can be taken through legislation was widely held among state courts (see Wynehamer v. People, 13 NY 378 [1855]). Thus when in Dred Scott v. Sanford, 60 US 393 (1857), the Supreme Court finally confronted the question of whether Congress could limit slavery, with dreadful predictability the Court held that under the Fifth Amendment, Congress could not limit the property rights of slaveholders entering federal territories. The Dred Scottcase was a severe blow to the Court's prestige, and in later years its memory would underscore arguments to limit the application of due process over the substance of laws.

During Reconstruction, Congress passed and the states ratified, the Southern states under compulsion, the Fourteenth Amendment. Section one of that amendment provides, "No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This latter clause, intended to ensure that no state discriminated against groups, such as the freedmen of the South or the Germans of the North, made specific an idea that once had been only implicitly within the scope of due process. (See equal protection of the law.) The drafters of the Fourteenth Amendment made a further distinction, between "law" and "the laws." One reading of this difference is that "the laws" are those actually passed by legislatures, while "law" remains the ideal of the common law.

In the late nineteenth century, the Court employed due process among several tools curbing Congressional and state power to regulate labor and commerce. In the Slaughterhouse Cases, 83 US 36 (1873), Justices Bradley and Swayne argued, in dissent, that a state law granting a monopoly deprived the people of liberty and property in their choice of employment. The right of choice in adopting lawful employments is, "a portion of their liberty: their occupation is their property." This view, quickly adopted by state courts, was later accepted by the Court's majority and applied in a series of cases ruling that the Due Process Clause and the Contracts Clause forbade statutes limiting child labor, wage and hour laws, and laws requiring safe or sanitary working conditions (for example, Allgeyer v. Louisiana, 165 US 578 [1897]; Lochner v. New York, 198 US 45 [1905]). The seeds of doubt had been sown, however, and Oliver Wendell Holmes argued in an influential dissent in Lochner that due process did not enshrine one economic theory of the law.

The pressures of the Great Depression, the influence on judges of progressivism and legal realism, and the drumbeat of legislation from the states and the Congress led the Court to severely limit its broad use of due process to evaluate legislation. (See police power.) In National Labor Relations Board v. Jones and Laughlin (1937), the Court ruled that it would defer to Congress and to agencies in regulating commerce, interfering only if the statute or action was unreasonable. Similar deference was extended to labor and property regulation. "Reasonableness review" is not utterly empty, and the Court has continued to assert that due process requires every statute to pursue a legitimate governmental purpose through reasonable means.

Due process since the New Deal era has followed distinct lines of argument, based on procedure, the incorporation of liberties into the Bill of Rights, limits on laws that are vague, limits on laws that burden excluded classes, and the protection of ordered liberty.

"Procedural due process" is the twentieth-century term for the traditional concern that no one lose life, liberty, or property without proper adjudication. It appears to have first been used in 1934 by Justice Roberts, dissenting in Snyder v. Massachusetts, 291 US 97: "Procedural due process has to do with the manner of the trial; dictates that in the conduct of judicial inquiry certain fundamental rules of fairness be observed; forbids the disregard of those rules, and is not satisfied, though the result is just, if the hearing was unfair." This element of due process most importantly requires that any permanent loss of property be preceded by a fair proceeding by a court with jurisdiction over the matter, and that the person defending there have adequate notice and a fair opportunity to defend the case before an impartial judge (see Rees v. City of Watertown, 86 US 107 [1873]; Hurtado v. California, 110 US 516 [1884]). The extent of the process required has, since Mathews v. Eldridge, 424 US 319 (1976), varied according to the interest at risk: if the interest to the individual is more important, and additional procedures would likely diminish factual mistakes and are not too expensive, it is more likely the procedures will be required.

The most critical question of procedural due process is what interests it protects. The nineteenth-and early twentieth-century view was to distinguish protected rights from unprotected interests. Thus, when Justice Holmes said, "there is no right to be a policeman," it followed that denying certain liberties to a policeman on the job did not give rise to due process requirements (McAuliffe v. Mayor of NewBedford, 155 Mass. 216 [1892]). In the last third of the twentieth century, this distinction dissolved, and the Court recognized due process guarantees against the loss of government-created entitlements (Goldberg v. Kelly, 397 US 254 [1970]), finding in Board of Regents v. Roth, 408 US 564 (1972) that due process rights apply to job termination if a reasonable expectation of continued government employment gives rise to a property interest. Paul v. Davis, 424 US 693 (1976) recognized similar protections for a liberty interest. (See also Morrissey v. Brewer, 408 US 471 [1972], in reference to prisoner parole hearings; and Goss v. Lopez, 419 US 565 [1975], concerning public education.)

The closing decades of the twentieth century saw some retreat from broad applications of procedural due process. Acting often on arguments to reassert the "original intent" of the framers, the Court also limited the requirements of notice, as when a prior conviction serves as notice for all postconviction harms by state officials (Parratt v. Taylor, 451 US 527 [1981]), or the definition of liberty is narrowed to exclude the civil commitment to prison (Kansas v. Hendricks, 521 US 346 [1997]).

Although review of economic legislation has diminished, it has yet to die. The potential for the Court to strike down state economic regulations persists, although it is unclear how willing the Court is to act on such grounds alone, and much of the scrutiny of state regulations once done as a matter of due process was done in the 1980s and 1990s as review of limitations on property rights under the takings clause (see Eastern Enterprises v. Apfel, 524 US 498 [1998]).

The Court has continued to apply due process to protect individual liberties, interpreting it to incorporate the restrictions of the Bill of Rights. In Twining v. New Jersey, 211 US 78 (1908), the Court suggested the possibility, manifested in Justice Cardozo's opinion in Palko v. Connecticut, 302 US 319 (1937), that some limits on the central government in the first eight amendments are "incorporated" into the due process clause of the Fourteenth Amendment and so binding on the states. Since then, the Court has incorporated into due process the First Amendment's guarantees of speech, religion, and association (West Virginia v. Barnette, 319 US 624 [1943]; Everson v. Board of Education, 330 US 1 [1947]; Edwards v. South Carolina, 372 US 229 [1963]); the Fourth Amendment's warrants and search clauses (Mapp v. Ohio, 367 US 643 [1961]; Ker v. California, 374 US 23 [1963]); the Fifth Amendment's bars of double jeopardy, self-incrimination, and takings of property without just compensation (Palko [1937]; Malloy v. Hogan, 378 US 1 [1964]; Penn Central v. New York City, 438 US 104 [1978]); the Sixth Amend-ment's guarantees of a speedy and public jury trial, with notice of the charge, and of the right to confront witnesses, who must appear, and the right to counsel(Klopfer v. North Carolina, 386 US 213 [1967]; In re Oliver, 333 US 257 [1948]; Duncan v. Louisiana, 391 US 145 [1968]; Cole v. Arkansas, 333 US 196 [1948]; Pointer v. Texas, 380 US 400 [1965]; Washington v. Texas, 388 US 56 [1967]; Gideon v. Wainwright, 372 US 335 [1963]); and the Eighth Amendment's bars on excessive bail and on cruel and unusual punishment (Schilb v. Kuebel, 404 US 357 [1971]; Robinson v. California, 370 US 660 [1962]).

Vagueness has been a due-process standard for criminal law since Stromberg v. California, 283 US 359 (1931), in which Chief Justice Hughes wrote that a statute so vague as to allow the punishment of speech protected under the First Amendment would violate the Fourteenth Amendment. This idea was expanded in 1948 into a general standard of definiteness, which requires that crimes be defined with appropriate definiteness so that anyone with common intelligence can determine what conduct is punishable (Winters v. New York, 333 US 507). (See also Papachristou v. City of Jacksonville, 405 US 156 [1972], invalidating a vagrancy law, and Chicago v. Morales, 527 US 41 [1999], invalidating a gang-member loitering law.)

Some federal due-process cases examine laws more strictly than merely assuring they are reasonable. If a law burdens a fundamental interest in liberty or creates a burden that falls particularly on a discreet and insular minority group that has been denied access to the legislative process, the degree of judicial scrutiny rises, and such laws will only be upheld if they pursue compelling state interests by the most narrowly tailored means possible. This idea, announced in a footnote in Justice Stone's opinion in United States v. Carolene Products, 304 US 144 (1938), has been the basis of the development of civil rights doctrines of equal protection. It has also been the basis for several cases that suggest the continuing vitality of general, substantive due process review, as one justification both for decisions protecting a right to privacy and guaranteeing rights to medical procedures (see Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 [1992]; Washington v. Glucksberg, 521 US 702 [1997]).

One important application of this approach has been to read the Fifth Amendment's due-process limits on Congress as including an assurance of equal protection. Signaling such a change in the Japanese internment cases, the Court announced in Hirabayashi v. United States, 320 US 81 (1943), that the Fifth Amendment may restrain "such discriminatory legislation by Congress as amounts to a denial of due process" and in Korematsu v. United States, 323 US 214 (1944), that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect" and to be reviewed with "the most rigid scrutiny." Thus in Bolling v. Sharpe, 347 US 497 (1954), the Court struck down District of Columbia school-segregation laws under the Fifth Amendment.

Lastly, the states remain important sources for the expansion of due process laws. State courts have the final authority to determine the meaning of state constitutions, and the due process clauses of state law have often been interpreted to encompass broader protections of individual rights than have been found in the Fifth and Fourteenth Amendments.


Aynes, Richard L. "On Misreading John Bingham and the Fourteenth Amendment." Yale Law Journal 103 (October 1993): 57–104.

Ely, James W., Jr. "The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process." Constitutional Commentary 16 (Summer 1999): 315–345.

Mott, Rodney. Due Process of Law: A Historical and Analytical Treatise. Indianapolis, Ind.: Bobbs-Merrill, 1926.

Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Cambridge, Mass.: Harvard University Press, 1988.

Perry, Michael J. We the People: The Fourteenth Amendment and the Supreme Court. New York: Oxford University Press, 1999.

Schwartz, Bernard, ed. The Fourteenth Amendment: Centennial Volume. New York: New York University Press, 1970.

Ten Broek, Jacobus. Equal under Law. New York: Collier Books,1965.


See alsoBill of Rights in U.S. Constitution ; Constitution of the United States ; andvol. 9:Congress Debates the Fourteenth Amendment .

Due Process of Law

views updated May 21 2018

Due Process of Law

Due process of law describes proper legal procedures but also has additional meanings in American constitutional law. The essential guarantee of due process is fairness, although its implementation in practice depends on the particular institutions of a given legal system; trial by jury, adversary proceedings, and certain rules of evidence, for instance, are specific to the common law system and not necessarily universal requirements. In general, procedural propriety means that disputes are resolved according to law; that is, courts are open and available to litigants, decisions are rendered by learned and impartial judges, and judgments are promptly and effectively enforced. All U.S. state constitutions expressly guarantee due process of law, using either those words or the synonymous phrase "by the law of the land." The U.S. Constitution, in keeping with the federal form of American government, contains two guarantees: The Fifth Amendment in the Bill of Rights (1791) prohibits the federal government from depriving any person of "life, liberty, or property, without due process of law," and the Fourteenth Amendment, adopted in 1868 to constitutionalize the results of the U.S. Civil War (1861–1865), extends the same prohibition to the states.

As developed by American courts, both state and federal, due process has a substantive as well as a procedural component. Procedural due process summarizes proper procedure generally and authorizes judges to fill gaps left by express procedural guarantees. Substantive due process, like its procedural counterpart, authorizes the judicial protection of rights not expressly enumerated elsewhere in the constitutional texts. Substantive due process may be further divided into economic substantive due process, concerned with economic freedom, especially freedom of contract, and noneconomic (or social) substantive due process, concerned with the right to privacy. Although one may find correlations in many of the world's legal systems, the rights protected by substantive due process in the United States are not elsewhere subsumed under the general phrase "due process," but are given more specific labels. Even in American jurisprudence , due process is often interchangeable with other juristic concepts, such as equal protection or the separation of powers.

historical background

The pedigree of the phrase "due process of law" may be traced back to the Magna Carta (1215), in which the embattled English King John was forced by his rebellious barons to swear that he would take no action against any free person nisi per legem terrae (except by the law of the land). Hundreds of years later the influential English jurist Sir Edward Coke associated the Latin phrase per legem terrae with a French phrase (French being the language of English law in the centuries after the Norman Conquest), en due process a la commune lei; he translated it as "by due process according to the common law." In time the phrase was honed to "due process of law." Although in England, the land of its birth, due process as a phrase gradually went out of fashion, the concept survived in a similar expression, "rule of law." Before that happened, however, American constitution-makers, conscious of the role due process had played in English constitutional history, enshrined it in America's founding documents. Heirs of the English common law tradition—American judges—using their power to review statutes for compliance with the constitutions, proceeded to develop the demands of due process over the years in an accumulating series of precedents .

procedural due process

In the United States, state and federal constitutions contain a host of procedural guarantees, many of them quite specific and historically conditioned, such as indictment by grand jury and limitations on the review of facts found by a trial jury. When gaps have been discovered, the general guarantee of due process has been invoked. In Tumey v. Ohio (1928), for example, the U.S. Supreme Court reviewed a state statute that gave a magistrate a share of the fines imposed in case of conviction and held that for a judge to have a financial interest in the outcome of a case "deprives a defendant in a criminal case of due process of law." In state constitutions that expressly prohibit the practice, such as the constitution of North Carolina, the problem would be addressed as a violation of the more specific provision.

In civil cases, too, express guarantees have been supplemented by recourse to the general requirements of due process. In Goldberg v. Kelly (1970) the Supreme Court ruled that before a state could terminate welfare benefits due process required a fair hearing, and provided a comprehensive summary of precisely what that meant:

  1. adequate notice,
  2. an opportunity to be heard,
  3. the right to present evidence,
  4. confrontation of opposing witnesses,
  5. the right to cross-examine those witnesses,
  6. disclosure of all adverse evidence,
  7. the right to an attorney if desired,
  8. a decision based solely on the evidence produced at the hearing,
  9. a statement of reasons for the decision,
  10. an impartial decision maker.

In code-based legal systems these rights would more likely be expressly guaranteed, rather than derived by judicial development from the general concept of due process.

Because the U.S. Bill of Rights applies only to action by the federal government and specifies a number of rights not included in the text of the Fourteenth Amendment, which applies only to state action, the due process clause of the Fourteenth Amendment has become the vehicle through which most of the Bill of Rights has been applied to the states. The Fourteenth Amendment is said to "incorporate" the Bill of Rights, a doctrine that may be seen as a judicial response to criticism that the bare phrase "due process " is too open to interpretation: Reference to the rights enumerated in the Bill of Rights guides judicial discretion. When the only role of the due process clause of the Fourteenth Amendment is to incorporate parts of the Bill of Rights, due process is not itself the source of the constitutional limitations but only the vehicle through which those limitations are applied to the states.

Before the acceptance of the incorporation doctrine, the U.S. Supreme Court addressed claims of violations of due process by the states by asking general questions, such as whether a challenged practice violates "fundamental principles of liberty and justice" or whether it "shocks the conscience." Before incorporation, for example, it held in Rochin v. California (1952) that state law enforcement officers' use of incriminating evidence obtained by pumping the stomach of an unwilling suspect violated due process in general. Although this approach was finally abandoned in favor of incorporating the more specific provisions of the Bill of Rights, such as the privilege against self-incrimination in the Fifth Amendment, it suggests an approach to be used in searching for counterparts to the American law of due process in other legal systems; that is, whatever means those systems use to safeguard "fundamental principles" or to avoid abusive government practices may be analogs to due process as understood in the American constitutional system. The European Convention on Human Rights and Fundamental Freedoms, for example, provides expressly that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." In the United States the guarantee of due process has been held to mean just that and more.

substantive due process

Substantive due process is far less intuitive than its procedural counterpart. To some extent, it can be explained by reference to the relative generality of the rights expressly protected by due process: life, liberty, and property. But it also reflects the American judiciary's strong commitment to the notion of limited government. Just as with procedural due process, substantive due process has been used to fill gaps left by more specific guarantees. Because the U.S. Constitution nowhere speaks about freedom of contract or the right to privacy, the courts located such rights in the concepts of liberty and property. Economic substantive due process is best exemplified by the Supreme Court's decision in Lochner v. New York (1905) holding unconstitutional a state statute that limited the working hours of bakers. Due process was violated because the statute was determined to be "an unreasonable, unnecessary and arbitrary interference with the right of the individual" to contract with respect to hours of labor. The decision meant that much regulatory legislation, including much early labor law, was subject to searching judicial inquiry and possible veto. For example, both state and federal statutes that prohibited employers from requiring as a condition of employment that workers agree not to join a labor organization were held to violate due process. Although much social legislation survived judicial scrutiny, the risk of litigation and judicial invalidation delayed the emergence of modern welfare systems in American states.

The constitutional guarantee of freedom of contract, recognized in the heyday of laissez faire, was not finally abandoned until 1937, when the Court acknowledged in West Coast Hotel Co. v. Parrish (1937) that, in fact, "the Constitution does not speak of freedom of contract." The next year in United States v. Carolene Products Co. (1938) the Court announced that it would from that point forward presume the constitutionality of "regulatory legislation

affecting ordinary commercial transactions," but at the same time warned that it would not extend the presumption to restrictions on civil rights, implicitly splitting the judicial concept of liberty into economic and noneconomic components. Thereafter economic rights were accorded less generous protection by the courts than noneconomic or social rights. Although freedom of contract is no longer recognized as a constitutional right, the takings clause of the Fifth Amendment, prohibiting the government from seizing private property for public purposes without just compensation, has been invoked in challenges to state regulations that would once have been scrutinized for deprivations of property without due process.

Non-economic substantive due process is associated with the right to privacy, eventually located, although not without some difficulty, in the requirement of due process. Reaction to the freedom-of-contract cases made the Court wary at first of adopting an expansive reading of the due process clause, so when the Court in Griswold v. Connecticut (1965) invalidated state statutes outlawing the distribution of birth control materials to married persons, it rationalized its holding by a complicated theory of privacy protected by the "penumbras," or shadows, cast by a variety of rights enumerated in the Bill of Rights—notably not including the due process guaranteed by the Fifth Amendment. When a few years after Griswold its holding was extended to unmarried persons in Eisenstadt v. Baird (1972), the result was technically justified by the guarantee of "the equal protection of the laws" contained in the Fourteenth Amendment. The same law, it was held, must be applied to married and unmarried couples alike, but as the Court explained its decision, it implicated issues far beyond equality of treatment: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

Roe v. Wade (1973), finding a state ban on virtually all abortions "violative of the Due Process Clause of the Fourteenth Amendment," followed almost inevitably. Retrospectively, the cases that had invalidated restraints on the distribution of birth control materials were reconceptualized as due process cases. A comprehensive statement of the law was attempted two decades later in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), largely reaffirming Roe and explaining that the liberty protected by due process included "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education." To intrude into such personal decisions, the state needed a compelling reason.

After initial rejection, due process was found to protect private consensual sexual activity more generally; Lawrence v. Texas (2003) held state sodomy laws to be unconstitutional. The guarantee of due process is not found only in the federal constitution nor is the development of substantive due process a monopoly of federal courts. In Goodridge v. Department of Public Health (2003) the Massachusetts Supreme Judicial Court, extending the reasoning in Lawrence, held that the state's refusal to recognize the marriage of same-sex couples was a violation of the due process protected by the state constitution's law-of-the-land clause. It may be that the emptying of due process by the incorporation doctrine of much of what once was considered its content and leaving it as a residual category, invoked in only the most controversial cases, explains many of the difficulties surrounding its current use in the United States.

Once again the incorporation of the Bill of Rights in the due process clause of the Fourteenth Amendment has added specificity to the general concept. But again the earlier inquiry provides a guide to what sorts of counterparts to the American law of due process exist in other legal systems. The Supreme Court of Canada in R. v. Morgentaler held that a restrictive abortion law infringed on the constitutional "right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," while in South Africa it was held in National Coalition for Gay and Lesbian Equality v. Minister of Justice that the common law crime of sodomy infringes on the "right to dignity" protected by the South African constitution. In the United States the demands of due process continue to be developed incrementally by judicial decision and encompass both procedural and substantive rights, while in other systems similar problems are addressed more self-consciously under various, usually more specific, provisions of law.

See also: Bill of Rights; European Convention on Human Rights and Fundamental Freedoms; Magna Carta; Right to Privacy.


Brandeis, Louis D., and Samuel D. Warren. "The Right to Privacy." Harvard Law Review 4 (1890):193–220.

Gilman, Howard. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. Durham, NC: Duke University Press, 1993.

Kens, Paul. Judicial Power and Reform Politics: The Anatomy of Lochner v. New York. Lawrence: University Press of Kansas, 1990.

Nowak, John E., et al. Constitutional Law. St. Paul, MN: West, 1983.

Orth, John V. Due Process of Law: A Brief History. Lawrence: University Press of Kansas, 2003.

Phillips, Michael J. The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s. Westport, CT: Praeger, 2001.

Pound, Roscoe. "Liberty of Contract." Yale Law Journal 18 (1909):454–487.

Siegel, Stephen A. "Lochner Era Jurisprudence and the American Constitutional Tradition." North Carolina Law Review 70 (1991):1–111.

Stoner, James, Jr. Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism. Lawrence: University Press of Kansas, 1992.

Strong, Frank R. Substantive Due Process of Law: A Dichotomy of Sense and Nonsense. Durham, NC: Carolina Academic Press, 1986.

Tribe, Laurence H. American Constitutional Law. Mineola, NY: Foundation Press, 1978.

Court Cases

Goldberg v. Kelly, 397 U.S. 254 (1970).

Goodridge v. Department of Public Health, 798 NE2d 941 (Massachusetts 2003).

Lawrence v. Texas, 123 S.Ct. 2472 (2003).

Lochner v. New York, 198 U.S. 45 (1905).

National Coalition for Gay and Lesbian Equality v. Minister of Justice, (1) SALR 6 (CC) (1999).

Planned Parenthood of Southeastern Pennsylvania v, Casey, 505 U.S. 833 (1992).

R. v. Morgentaler, 1 S.Ct. 30 (1988).

Rochin v. California, 342 U.S. 165 (1952).

Roe v. Wade, 410 U.S. 113 (1973).

Tumey v. Ohio, 273 U.S. 510 (1928).

United States v. Carolene Products Co., 304 U.S. 144 (1938).

West Coast Hotel Co., v. Parrish, 300 U.S. 379 (1937).

John V. Orth

Due Process of Law

views updated Jun 11 2018


A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious.

The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property. The due process clause of the fifth amendment, ratified in 1791, asserts that no person shall "be deprived of life, liberty, or property, without due process of law." This amendment restricts the powers of the federal government and applies only to actions by it. The Due Process Clause of the fourteenth amendment, ratified in 1868, declares,"[N]or shall any State deprive any person of life, liberty, or property, without due process of law" (§ 1). This clause limits the powers of the states, rather than those of the federal government.

The Due Process Clause of the Fourteenth Amendment has also been interpreted by the U.S. Supreme Court in the twentieth century to incorporate protections of the bill of rights, so that those protections apply to the states as well as to the federal government. Thus, the Due Process Clause serves as the means whereby the Bill of Rights has become binding on state governments as well as on the federal government.

The concept of due process originated in English common law. The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions and was widely accepted in England. The magna charta, an agreement signed in 1215 that defined the rights of English subjects against the king, is an early example of a constitutional guarantee of due process. That document includes a clause that declares, "No free man shall be seized, or imprisoned … except by the lawful judgment of his peers, or by the law of the land" (ch. 39). This concept of the law of the land was later transformed into the phrase "due process of law." By the seventeenth century, England's North American colonies were using the phrase "due process of law" in their statutes.

The application of constitutional due process is traditionally divided into the two categories of substantive due process and procedural due process. These categories are derived from a distinction that is made between two types of law. substantive law creates, defines, and regulates rights, whereas procedural law enforces those rights or seeks redress for their violation. Thus, in the United States, substantive due process is concerned with such issues as freedom of speech and privacy, whereas procedural due process is concerned with provisions such as the right to adequate notice of a lawsuit, the right to be present during testimony, and the right to an attorney.

Substantive Due Process

The modern notion of substantive due process emerged in decisions of the U.S. Supreme Court during the late nineteenth century. In the 1897 case of Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832, the Court for the first time used the substantive due process framework to strike down a state statute. Before that time, the Court generally had used the commerce clause or the Contracts Clause of the Constitution to invalidate state legislation. The Allgeyer case concerned a Louisiana law that proscribed the entry into certain contracts with insurance firms in other states. The Court found that the law unfairly abridged the right to enter into lawful contracts, as guaranteed by the Due Process Clause of the Fourteenth Amendment.

The next 40 years after Allgeyer were the heyday of what has been called the freedom-of-contract version of substantive due process. During those years, the Court often used the Due Process Clause of the Fourteenth Amendment to void state regulation of private industry, particularly regarding terms of employment such as maximum working hours or minimum wages. In one famous case from that era, lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the Court struck down a New York law (N.Y. Laws 1897, chap. 415, art. 8, § 110) that prohibited employers from allowing workers in bakeries to be on the job more than ten hours per day and 60 hours per week. The Court found that the law was not a valid exercise of the state's police power. It wrote that it could find no connection between the number of hours worked and the quality of the baked goods, thus finding that the law was arbitrary.

In Allgeyer and Lochner and in other cases like them, the Court did not find that state legislatures had failed to enact their laws using the proper procedures—which would present an issue of procedural due process. Instead, it found that the laws themselves violated certain economic freedoms that inhered in the Due Process Clause, specifically its protection of liberty and what the Court described as freedom or liberty of contract. This freedom meant that individuals had the right to purchase or to sell labor or products without unreasonable interference by the government.

This interpretation of the Due Process Clause put the Court in direct opposition to many of the reforms and regulations passed by state legislatures during the Progressive Era of the early twentieth century. Justices who were opposed to the Court's position in such cases, including oliver wendell holmes jr. andjohn m. harlan, saw such rulings as unwarranted judicial activism in support of a particular free-market ideology.

During the 1930s, the Court used the doctrine of substantive due process to strike down federal legislation as well, particularly legislation associated with President franklin d. roosevelt's new deal. In 1937, Roosevelt proposed a court-packing scheme in which Roosevelt would have sought to overcome Court opposition to his programs by appointing additional justices. Although the plan was never adopted, the Court quickly changed its position on substantive due process and other issues and began to uphold new deal legislation. Now, a majority on the Court, including Chief Justice charles e. hughes and Justice benjamin n. cardozo, abandoned the freedom-of-contract version of substantive due process.

Even before the Court abandoned the freedom-of-contract approach to substantive due process, it began to explore using the Due Process Clause of the Fourteenth Amendment to re-evaluate state laws and actions affecting civil freedoms protected by the Bill of Rights. Since the 1833 case of barron v. baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672, the Court had interpreted the Bill of Rights as applying only to the federal government. Beginning in the 1920s, however, it began to apply the Bill of Rights to the states through the incorporation of those rights into the Due Process Clause of the Fourteenth Amendment. In gitlow v. new york, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), the Court ruled that the liberty guarantee of the Fourteenth Amendment's Due Process Clause protects first amendment free speech from state action. In near v. minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court found that freedom of the press was also protected from state action by the Due Process Clause, and it ruled the same with regard to freedom of religion in Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940).

Because incorporation has proceeded gradually, with some elements of the Bill of Rights still unincorporated, it has also been called selective incorporation. Nevertheless, during the twentieth century, most of the provisions of the Bill of Rights were incorporated by the Due Process Clause of the Fourteenth Amendment, thereby protecting individuals from arbitrary actions by state as well as federal governments.

By the 1960s, the Court had extended its interpretation of substantive due process to include rights and freedoms that are not specifically mentioned in the Constitution but that, according to the Court, extend or derive from existing rights. These rights and freedoms include the freedoms of association and nonassociation, which have been inferred from the First Amendment's freedom-of-speech provision, and the right to privacy. The right to privacy, which has been derived from the First, Fourth, and Ninth Amendments, has been an especially controversial aspect of substantive due process. First established in griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Court later used it to protect a woman's decision to have an abortion free from state interference, in the first trimester of pregnancy (roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]).

In several recent decisions, the U.S. Supreme Court has considered the application of substantive due process in light of actions taken by law enforcement officers. It often has determined that police actions have not violated a defendant's due process rights. In County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998), for example, the Court determined that high-speed chases by police officers did not violate the due process rights of the suspects whom the officers were chasing. In that case, two police officers had engaged in a pursuit of two young suspects at speeds of more than 100 miles per hour through a residential neighborhood. One of the young men died, while the other suffered serious injuries. A unanimous Court held that the officers' decision to engage in the pursuit had not amounted to "governmental arbitrariness" that the Due Process Clause protects due to the nature of the judgment used by the officers in such a circumstance.

The Court in City of West Covina v. Perkins, 525 U.S. 234, 119 S. Ct. 678, 142 L. Ed. 2d 636 (1999) again held in favor of law enforcement officers in a claim that police had violated the plaintiff's due process rights. After seizing personal property, including cash savings, of two owners of a home they had searched during a murder investigation, the police retained the property at the police station. When the homeowners sought to have the property returned, the police failed to provide the homeowners with detailed information about how the owners

could have their property returned. The homeowners then filed a 42 U.S.C.A. § 1983 action against the police, claiming deprivation of civil rights under the Due Process Clause. The Supreme Court held that because information about the proper procedures to retrieve this property under state law was readily available to the plaintiffs, the police had not deprived the homeowners of their due process rights.

The U.S. Supreme Court is more likely to find due process violations where the actions of a government official are clearly arbitrary. In City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999), for example, it struck down a Chicago anti-gang ordinance as unconstitutional on due process grounds. The ordinance allowed police officers to break up any group of two or more persons whom they believed to be loitering in a public place, provided that the officer also believed that at least one member of the group was a gang member. The ordinance had led to more than 43,000 arrests. Because the ordinance did not draw the line between innocent and guilty behavior and failed to give guidance to police on the matter, the ordinance violated the due process rights of the subjects of these break-ups. The Court held that since the ordinance gave absolute discretion to the police officers to determine what actions violated the ordinance, it was an arbitrary restriction on personal liberty in violation of the Due Process Clause.

In 2002, the Court found that arbitrary actions by a trial judge in a murder case violated the due process rights of the defendant (Lee v. Kemna, 534 U.S. 362, 122 S. Ct. 877, 151 L. Ed. 820 [2002]). In that case, the defendant was charged with first-degree murder for driving the getaway car for a man who had pled guilty to a murder charge in Kansas City, Missouri. The defendant claimed that he had been in California at the time of the murder, and four family members were to testify at trial that the defendant was not in Kansas City at the time of the murder. However, the family members left before they were expected to testify, and the defense could not locate them. The defense asked the court for a short continuance of one or two days, but the judge refused due to personal conflicts and a conflict with another trial. Without the testimony of the family members, the defendant was convicted of murder. The high court held that the judge's arbitrary actions violated the defendant's due process rights, and it vacated the defendant's conviction.

Procedural Due Process

The phrase "procedural due process" refers to the aspects of the Due Process Clause that apply to the procedure of arresting and trying persons who have been accused of crimes and to any other government action that deprives an individual of life, liberty, or property. Procedural due process limits the exercise of power by the state and federal governments by requiring that they follow certain procedures in criminal and civil matters. In cases where an individual has claimed a violation of due process rights, courts must determine whether a citizen is being deprived of "life, liberty, or property," and what procedural protections are "due" to that individual.

The Bill of Rights contains provisions that are central to procedural due process. These protections give a person a number of rights and freedoms in criminal proceedings, including freedom from unreasonable searches and seizures; freedom from double jeopardy, or being tried more than once for the same crime; freedom from self-incrimination, or testifying against oneself; the right to a speedy and public trial by an impartial jury; the right to be told of the crime being charged; the right to cross-examine witnesses; the right to be represented by an attorney; freedom from cruel and unusual punishment; and the right to demand that the state prove any charges beyond a reasonable doubt. In a series of U.S. Supreme Court cases during the twentieth century, all of these rights were applied to state proceedings. In one such case, gideon v. wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the Court ruled that the Due Process Clause of the Fourteenth Amendment incorporates the sixth amendment right to have an attorney in "all criminal prosecutions," including prosecutions by a state. The case proved to be a watershed in establishing indigents' rights to legal counsel.

Procedural due process also protects individuals from government actions in the civil, as opposed to criminal, sphere. These protections have been extended to include not only land and personal property, but also entitlements, including government-provided benefits, licenses, and positions. Thus, for example, the Court has ruled that the federal government must hold hearings before terminating welfare benefits (Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 [1970]). Court decisions regarding procedural due process have exerted a great deal of influence over government procedures in prisons, schools, social security, civil suits, and public employment.

The U.S. Supreme Court in Lujan v. G&G Firesprinklers, Inc., 532 U.S. 189, 121 S. Ct. 1446, 149 L. Ed. 2d 391 (2000) held that a state is not required to hold a hearing before withholding money and imposing penalties on a building contractor. The California Division of Labor & Standards Enforcement determined that a building subcontractor had failed to pay the prevailing wage to workers who installed fire sprinklers in state buildings. The California agency, without providing notice or a hearing, fined the general contractor, which in turn withheld money from the subcontractor. The sub-contractor, G&G Firesprinklers, Inc., sued the California agency, claiming that the agency had violated the company's procedural due process rights. The Court disagreed, holding that because the company could sue the agency for breach of contract, the fine did not constitute a due process violation.

further readings

Cassel, Douglass W., Jr. 2003. "Detention Without Due Process." Chicago Daily Law Bulletin 149 (March 13).

Israel, Jerold H. 2001. "Free-Standing Due Process and Criminal Procedure: the Supreme Court's Search for Interpretive Guidelines." Saint Louis University Law Journal 45 (spring).

Pennock, J. Roland, and John W. Chapman. 1977. Due Process. New York: New York University Press.


Criminal Procedure; Incorporation Doctrine; Judicial Review; Labor Law; Right to Counsel.

Due Process of Law

views updated Jun 08 2018


A 1354 act of Parliament reconfirming magna carta paraphrased its chapter 29 as follows: "That no man … shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in Answer by due Process of Law." This was the first reference to due process in English legal history. Chapter 29 of the 1225 issue of Magna Carta originally concluded with the phrase "by the law of the land." Very probably the 1354 reconfirmation did not equate "the law of the land" with "due process of law"; the two were not synonymous. Due process in the 1354 enactment, and until the seventeenth century, meant an appropriate common law writ.

In the Five Knights Case (see petition of right), john selden, the great parliamentarian, said in defense of the accused that "No freeman shall be imprisoned without due process of law," meaning that the "law of the land" was an equivalent for "either indictment or presentment." Sir edward coke, in his commentary on Magna Carta, also equated due process with the law of the land, meaning regularized courses of proceeding in common law prosecutions for crime. Coke's primary claim was that the law of the land was the common law, one of several rival systems of law then prevalent in England. When abolishing the courts of High Commission and Star Chamber, Parliament in 1641 quoted the due process phraseology of the act of 1354 and added that trials by "ordinary Courts of Justice and by the ordinary course of law" protected property right against arbitrary proceedings. john lilburne and his Levellers agreed, but they also asserted that due process signified a cluster of procedural protections of the criminally accused, including trial by jury, the right to counsel, and the right against self-incrimination. By the mid-seventeenth century due process and the law of the land referred to procedural due process in both civil and criminal cases. The "law of the land" usage, however, was the dominant one, and "due process" continued to be used in the very limited sense of a writ appropriate to a legal proceeding. A century later william blackstone discussed various processes—original, mesne, and final—without discoursing on due process of law per se. After referring to indictment in capital cases and the principle that "no man can be put to death without being brought to answer by due process of law," Blackstone referred to the different writs that summoned an accused to trial in misdemeanor and felony cases.

In the American colonies the usage was similar. In deference to Magna Carta, the "law of the land" formulation was by far the most common, although a variety of paraphrases existed. The massachusetts body of liberties (1641) guaranteed that one's life, liberty, and property could not be deprived except by "some expresse law of the Country warranting the same, established by a generall Court and sufficiently published"—that is, by known, standing law. West New Jersey protected the same substantive rights by a clause guaranteeing "due trial and judgment passed by twelve good and lawful men." New York in 1683 sought a charter that incorporated the famous chapter of Magna Carta with a clause requiring "by due course of law." Probably the first American reference to "due process of law" was in a Massachusetts act of 1692 endorsing chapter 29 of Magna Carta.

During the controversy with Great Britain leading to the American Revolution, Americans frequently spoke of trial by jury, fundamental law, the law of the land, no taxation without representation, and a gamut of civil liberties, but rarely referred to due process of law. Their references to the "law of the land" had no fixed or single meaning. They meant by it a variety of safeguards against injustice and abuses of criminal procedure; they equated it with notice, hearing, indictment, trial by jury, and, more generally, with regular forms of common law procedure and even the fundamental law itself or constitutional limitations on government. The "law of the land" was an omnibus phrase whose content ranged from specific writs to the concept of constitutionalism, and the phrase connoted protection of substantive rights—life, liberty, and property—as well as various precedural rights. Later, due process inherited all the content and connotations of law of the land.

All the first state constitutions used the "law of the land" phraseology, as did the northwest ordinance of 1787. No state constitution included a due process clause until New York's of 1821, although Mississippi's constitution of 1817 referred to "due course of law." Before theCivil War, only five state constitutions referred to "due process of law." All others had the older "law of the land" equivalent.

The first American constitution to include a due process clause was the Constitution of the United States in its Fifth Amendment, ratified in 1791. The clause reflected james madison's preference. For reasons unknown, he recommended that no person should be "deprived of life, liberty, or property without due process of law." The four states which had ratified the Constitution with recommendations for a comprehensive bill of rights urged versions of chapter 29 of Magna Carta, although only one, New York, referred to "due process of law" rather than "law of the land." The due process clause of the Fifth Amendment was ratified without any discussions that illumine its meaning. Although every clause of the Constitution is supposed to have its own independent meaning, rendering no clause tautological, the due process clause was an exception. It pacified public apprehensions, bowed toward Magna Carta, and reinforced specific rights such as trial by jury.

When the Supreme Court construed the due process clause of the Fifth Amendment for the first time in murray v. hoboken land company (1856), it declared that although due process limited all branches of the government, it had only the procedural connotations that derived from the settled usages and modes of proceeding which characterized old English law suited to American conditions. Chief Justice roger b. taney's opinion in dred scott v. sandford (1857) passingly employed substantive due process of law, which had cropped up in some state decisions and in abolitionist constitutional theory as well as proslavery theory. The fourteenth amendment's due process clause, taken verbatim from the Fifth's, proved to be the turning point in the national acceptance of "due process of law" as the common usage rather than the "law of the land" usage. In the last third of the nineteenth century, state constitutions finally substituted "due process" for "law of the land," and judicial decisions, state and federal, as well as legal treatises, expounded "due process of law," making it the most important and influential term in American constitutional law.

Leonard W. Levy


Howard, A.E. Dick 1968 The Road from Runnymede: Magna Carta and Constitutionalism in America. Charlottesville: University Press of Virginia.

Jurow, Keith 1975 Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law. American Journal of Legal History 19:265–279.

Mott, Rodney 1926 Due Process of Law. Indianapolis: Bobbs-Merrill.

due process of law

views updated Jun 08 2018

due process of law Formal legal procedure to ensure that no one is deprived of life, freedom or property before proper legal authority has been obtained. It is enshrined in England's Magna Carta and the 5th and 14th Amendments of the US Constitution. A major element of the process is a trial.