The term due process refers to the guaranteed rights that ensure that an individual cannot be deprived of “life, liberty, or property, without due process of law.” This provision, as it applies to the U.S. federal government, is found in the Fifth Amendment to the U.S. Constitution. It is also found in the Fourteenth Amendment, where it constrains the actions of the states. The notion of due process arises from the premise that law should be fair, predictable, and transparent. Perhaps more importantly, a guarantee of due process ensures that whenever the sovereign or government interacts with an individual, it is bound by the law from both a substantive and procedural perspective.
The Bill of Rights (the first ten amendments to the U.S. Constitution) initially only acted as a constraint on the actions of the federal or national government. Once the Fourteenth Amendment was enacted after the Civil War, the U.S. Supreme Court utilized the due process clause to incrementally apply those constraints to the state governments. Through the process known as “incorporation,” the due process clause served as the conduit to apply the Bill of Rights to the relationship between individuals and the state governments.
The Court did not apply all the governmental restrictions of the Bill of Rights at once, however. Rather, over time, the Court incorporated more discreet rights using a progressively broader configuration of the due process clause. For instance, in Mapp v. Ohio (1961), the Court ruled that the Fourth Amendment prohibited states from introducing illegally obtained evidence during criminal prosecutions. This “exclusionary rule”—which holds that improperly obtained evidence must be excluded from the prosecution’s case—supported and gave weight to a line of previous cases that prohibited unreasonable searches and dictated the need for “probable cause” before a search warrant could be issued. The Fifth Amendment prohibitions on double jeopardy or compelled self-incriminating testimony were also held to apply to state actions. In Miranda v. Arizona (1966), the Court determined that the right to an attorney contained in the Sixth Amendment and the right against self-incrimination contained in the Fifth Amendment were so important that the police must affirmatively advise suspects of those rights before questioning a detained suspect.
The notion of due process is not limited by the text of the Bill of Rights. Although the Court has incorporated many specific provisions of the rights contained in the Constitution, it has embraced a broader notion of due process that suggests an independent constraint on governmental procedures that are not particularly derived from constitutional text apart from the due process clauses. For instance, in Rochin v. California (1952) the Court held that shocking behavior can violate procedural due process even if no specific text of the Constitution is at issue (in this case, the police forcibly pumped out a suspect’s stomach to recover drugs he had swallowed upon their entry). Fundamental notions of decency and fair process are thus intrinsic aspects of due process.
Although most questions about due process are concerned with procedural due process—the process or procedure at issue—on occasion the Court has considered substantive aspects of due process. In Skinner v. Oklahoma (1942), the Court used a substantive due process analysis as the basis for overturning a criminal statute in Oklahoma that provided for the sterilization of some three-time felony offenders but not others. There is a debate as to whether the right to privacy found in the emanations and penumbras of the Bill of Rights, as found in Griswold v. Connecticut (1965) and Roe v. Wade (1973) is grounded in substantive due process. In Griswold the Court found that a right to privacy prohibited Connecticut from outlawing birth control for married couples, and in Roe the Court recognized the right of women to obtain an abortion before the third trimester of pregnancy.
The foundational expectation of due process means that government bodies, agencies, and actors must provide some set review before depriving an individual of life, liberty, or property, broadly defined. The required process may take the form of administrative hearings, appellate procedures, or some other forum to hear and oppose the prospective governmental action. Since the time of the Magna Carta in England, due process has meant a fundamental demand that the government follow the appropriate law. The concept, as well as the fundamental transparency and fairness it implies, holds in both international legal regimes and any constitutionally grounded government.
SEE ALSO Civil Liberties; Civil Rights; Constitution, U.S.; Supreme Court, U.S.
Hensley, Thomas R., Christopher E. Smith, and Joyce A. Baugh. 1997. The Changing Supreme Court, Constitutional Rights and Liberties. Minneapolis, MN: West Publishing.
Orth, John V. 2003. Due Process of Law: A Brief History. Lawrence: University Press of Kansas.
Schwartz, Bernard. 1993. A History of the Supreme Court. New York: Oxford University Press.
Charles Anthony Smith
"Due Process." International Encyclopedia of the Social Sciences. . Encyclopedia.com. (February 25, 2018). http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/due-process
"Due Process." International Encyclopedia of the Social Sciences. . Retrieved February 25, 2018 from Encyclopedia.com: http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/due-process
Modern Language Association
The Chicago Manual of Style
American Psychological Association
due proc·ess (also due process of law) • n. fair treatment through the normal judicial system, esp. as a citizen's entitlement.
"due process." The Oxford Pocket Dictionary of Current English. . Encyclopedia.com. (February 25, 2018). http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/due-process
"due process." The Oxford Pocket Dictionary of Current English. . Retrieved February 25, 2018 from Encyclopedia.com: http://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/due-process