Due process
Encyclopedia
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land
and thus protects individual persons from it. When a government harms a person without following the exact course of the law, this constitutes a due-process violation, which offends against the rule of law
.
Due process has also been frequently interpreted as limiting law
s and legal proceedings
(see substantive due process
), so judges - instead of legislators - may define and guarantee fundamental fairness, justice, and liberty. This interpretation has proven controversial, and is analogous to the concepts of natural justice
, and procedural justice
used in various other jurisdictions. This interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically.
Due process is not used in contemporary English law, though two similar concepts are natural justice
(which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions) and the British constitutional concept of the rule of law
as articulated by A. V. Dicey
and others. However, neither concept lines up perfectly with the American conception of due process, which, as explained below, presently contains many implied rights not found in the ancient or modern concepts of due process in England.
Due process developed from clause 39 of the Magna Carta
in England. When English and American law gradually diverged, due process was not upheld in England, but did become incorporated in the Constitution of the United States.
, John of England
promised as follows: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." Magna Carta itself immediately became part of the "law of the land
", and Clause 61 of that charter authorized an elected body of twenty-five barons to determine by majority vote what redress the King must provide when the King offends "in any respect against any man." Thus, Magna Carta established the rule of law
in England by not only requiring the monarchy to obey the law of the land, but also limiting how the monarchy could change the law of the land. It should be noted, however, that in the thirteenth century these provisions may have been referring only to the rights of landowners, and not to ordinary peasantry or villagers.
Shorter versions of Magna Carta were subsequently issued by British
monarchs, and Clause 39 of Magna Carta was renumbered "29." The phrase due process of law first appeared in a statutory rendition of Magna Carta in A.D. 1354 during the reign of Edward III of England
, as follows: "No man of what state or condition he be, 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."
In 1608, the English jurist Edward Coke
wrote a treatise in which he discussed the meaning of Magna Carta. Coke explained that no man shall be deprived but by legem terrae, the law of the land, "that is, by the common law, statute law, or custom of England.... (that is, to speak it once and for all) by the due course, and process of law.."
Both the clause in Magna Carta and the later statute of 1354 were again explained in 1704 (during the reign of Queen Anne
) by the Queen's Bench
, in the case of Regina v. Paty. In that case, the House of Commons
had deprived John Paty and certain other citizens of the right to vote in an election, and had committed them to Newgate Prison
merely for the offense of pursuing a legal action in the courts. The Queen's Bench, in an opinion by Justice Powys, explained the meaning of "due process of law" as follows:
Chief Justice Holt
dissented in this case, because he believed that the commitment had not in fact been by a legal authority. The House of Commons had purported to legislate unilaterally, without approval of the House of Lords
, ostensibly to regulate the election of its members. Although the Queen's Bench held that the House of Commons had not infringed or overturned due process, John Paty was ultimately freed by Queen Anne when she prorogued Parliament.
history, many laws and treatises asserted various requirements as being part of "due process" or included in the "law of the land". This view usually held in regards to what was required by existing law, rather than what was intrinsically required by due process itself. As the U.S. Supreme Court has explained, a due process requirement in Britain was not "essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used."
Ultimately, the scattered references to "due process of law" in English law
did not limit the power of the government; about this, American
law professor John Orth wrote that "the great phrases failed to retain their vitality." Orth points out that this is generally attributed to the rise of the doctrine of parliamentary supremacy in the United Kingdom, which was accompanied by hostility towards judicial review
as an undemocratic foreign invention.
Scholars have occasionally interpreted Lord Coke's ruling in Dr. Bonham's Case
as implying the possibility of judicial review, but by the 1870s, Lord Campbell
was dismissing judicial review as "a foolish doctrine alleged to have been laid down extra-judicially in Dr. Bonham's Case..., a conundrum [that] ought to have been laughed at." Lacking the power of judicial review, English courts possessed no means by which to declare government statutes or acts invalid as a violation of due process. As a consequence, English law and American law
diverged, with American legislators possessing no means by which to declare judicial invalidation of statutes incorrect (with the sole exception of proposing a constitutional amendment, which are rarely successful). In 1977, an English political science professor explained the present situation in England for the benefit of American lawyers:
Two similar concepts in contemporary English law are natural justice
(which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions) and the British constitutional concept of the rule of law
as articulated by A. V. Dicey
and others. However, neither concept lines up perfectly with the American conception of due process, which presently contains many implied rights not found in the ancient or modern concepts of due process in England.
commented on the language of that New York bill of rights: "The words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature."
New York
was the only state that asked Congress to add "due process" language to the U.S. Constitution. New York ratified the U.S. Constitution and proposed the following amendment in 1788: "[N]o Person ought to be taken imprisoned or diseased of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law."
In response to this proposal from New York, James Madison drafted a Due Process Clause for Congress. Madison cut out some language, and inserted the word without, which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed, after Madison explained that the Due Process Clause would not be sufficient to protect various other rights:
No state or federal constitution in the U.S. had ever before utilized any "due process" wording, prior to 1791 when the federal Bill of Rights was ratified. However when the U.S. Constitution took effect in 1789 it contained a Supremacy Clause
, which specified that the Constitution itself, and federal statutes enacted pursuant to the Constitution, would be the supreme "law of the land". As mentioned, in the early United States, the terms law of the land and due process were used somewhat interchangeably.
provides in part that
, and their steady incorporation into actual case law. The Fourteeth Amendment essentially reiterates the same phrase, but expressly applies to the states
and was expressly extended to Puerto Rico
by the U.S. Supreme Court.
Therefore, those two clauses only apply against state actor
s, and not against private citizens. The Supreme Court
has interpreted those two clauses identically, as Justice Felix Frankfurter
once explained in a concurring opinion: “To suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.”
The due process clauses apply to "legal persons" (that is, corporate personhood) as well as to individuals. Many state constitutions also have their own guarantees of due process (or the equivalent) that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to certain individuals than under federal law.
Due process also applies to the creation of taxing districts, as taxation is a deprivation of property. Due process typically requires public hearings prior to the creation of a taxing district.
restrains the executive and judicial branches, but additionally restrains the legislative branch. For example, as long ago as 1855, the Supreme Court explained that, to ascertain whether a process is due process, the first step is to “examine the constitution itself, to see whether this process be in conflict with any of its provisions....”
In case a person is deprived of liberty by a process that conflicts with some provision of the Constitution, then the Due Process Clause normally prescribes the remedy: restoration of that person's liberty. The Supreme Court held in 1967 that “we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights.”
stated as follows, in a 2004 dissent:
Despite the objections of people like Justice Hugo Black
in Winship, the courts have attempted to extract unwritten requirements from the Due Process Clause, regarding both procedure as well as substance. The distinction between substance and procedure is difficult in both theory and practice to establish. Moreover, the substantive component of due process has proven to be even more controversial than the procedural component, because it gives the Court considerable power to strike down state and federal statutes that criminalize various activities.
By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme Court to mean that “it was not left to the legislative power to enact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will.” But determining what those restraints are has been a subject of considerable disagreement.
, criminal prosecutions and civil cases are generally governed by explicit guarantees of procedural rights under the Bill of Rights
. Most of these rights have been incorporated
under the Fourteenth Amendment to the States
. Among those rights is the constitutional right to procedural due process, which has been broadly construed to protect the individual so that statute
s, regulation
s, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair opportunity to affect the judgment or result.
This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution
, which guarantees reliable procedures that protect innocent people from being executed, which would be an obvious example of cruel and unusual punishment.
At a basic level, procedural due process is essentially based on the concept of "fundamental fairness." For example, in 1934, the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.
Or, to put it more simply, where an individual is facing a (1) deprivation of (2) life, liberty, or property, (3) procedural due process mandates that he or she is entitled to adequate notice, a hearing, and a neutral judge.
The Supreme Court has formulated a balancing test
to determine the rigor with which the requirements of procedural due process should be applied to a particular deprivation, for the obvious reason that mandating such requirements in the most expansive way for even the most minor deprivations would bring the machinery of government to a halt. The Court set out the test as follows: "[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
Procedural due process has also been an important factor in the development of the law of personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it whatsoever. A significant portion of U.S. constitutional law is therefore directed to what kinds of connections to a state are enough for that state's assertion of jurisdiction over a nonresident to comport with procedural due process.
The requirement of a neutral judge has introduced a constitutional dimension into the question of whether a judge should recuse himself or herself from a case. Specifically, the Supreme Court has ruled that in certain circumstances, the Due Process Clause of the Fourteenth Amendment requires a judge to recuse himself on account of a potential or actual conflict of interest
. For example, on June 8, 2009, in Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia
could not participate in a case involving a major donor to his election to that court.
under the Due Process Clause. The term "substantive due process" began to take form in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions. SDP involves liberty-based due process challenges which seek certain outcomes instead of merely contesting procedures and their effects; in such cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope. Critics of SDP decisions typically assert that those liberties ought to be left to the more politically accountable branches of government.
Courts have viewed the Due Process Clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are “implicit in the concept of ordered liberty.” Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights have long histories or “are deeply rooted” in American society.
The courts have largely abandoned the Lochner era
approach (ca. 1897-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract
. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions, and alternatively they could be protected by legislatures.
Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment
, which originated in United States v. Carolene Products Co., , footnote 4. Those three types of rights are:
The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test
: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny
. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.
Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut
(1965), wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbra
s", or shadowy edges, of certain amendments that arguably refer to certain privacy rights. The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights. Although it has never been the majority view, some have argued that the Ninth Amendment
(addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg
concurring in Griswold.
Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford
. Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott, but claim that it was employed incorrectly. Additionally, the first appearance of substantive due process as a concept appeared earlier in the case of Bloomer v. McQuewan, . Chief Justice Taney
was not entirely breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the Missouri Compromise
unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." Dissenting Justice Curtis
disagreed with Taney about what "due process" meant in Dred Scott.
Criticisms of the doctrine continue as in the past. Critics argue that judges are making determinations of policy and morality that properly belong with legislators (i.e. "legislating from the bench"), or argue that judges are reading views into the Constitution that are not really implied by the document, or argue that judges are claiming power to expand the liberty of some people at the expense of other people's liberty (e.g. as in the Dred Scott case), or argue that judges are addressing substance instead of process.
Oliver Wendell Holmes, Jr.
, a realist
, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents:
Originalists
, such as Supreme Court Justice Clarence Thomas
, who rejects substantive due process doctrine, and Supreme Court Justice Antonin Scalia
, who has also questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation" or an "oxymoron." Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued over how substantive due process should be employed based on Court precedent.
Many non-originalists, like Justice Byron White
, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will." In his book Democracy and Distrust, non-originalist John Hart Ely
criticized "substantive due process" as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase green pastel redness.
Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case: "[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments."
Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process, and instead most originalists believe that such rights should be identified and protected legislatively, or via further constitutional amendments, or via other existing provisions of the Constitution.
The perceived scope of the Due Process Clause was originally different than it is today. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African-Americans, a "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment.... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause."
, which is used by the Judicial Branch. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny
—is used. To pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.
When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review
is used. Here a legitimate government interest is enough to pass this review. There is also a middle level of scrutiny, called intermediate scrutiny
, but it is primarily used in Equal Protection cases rather than in Due Process cases: “The standards of intermediate scrutiny have yet to make an appearance in a due process case.”
Incorporation started in 1897 with a takings case, continued with Gitlow v. New York (1925), which was a First Amendment
case, and accelerated in the 1940s and 1950s. Justice
Hugo Black
famously favored the jot-for-jot incorporation of the entire Bill of Rights. Justice Felix Frankfurter
, however—joined later by Justice John M. Harlan
—felt that the federal courts should only apply those sections of the Bill of Rights that were "fundamental to a scheme of ordered liberty." It was the latter course that the Warren
Court of the 1960s took, although, almost all of the Bill of Rights has now been incorporated jot-for-jot against the states.
The role of the incorporation doctrine in applying the guarantees of the Bill of Rights to the states is just as notable as the use of due process to define new fundamental rights that are not explicitly guaranteed by the Constitution's text. In both cases, the question has been whether the right asserted is "fundamental", so that, just as not all proposed "new" constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.
Some people, such as Justice Black, have argued that the Privileges or Immunities Clause
of the Fourteenth Amendment would be a more appropriate textual source for the incorporation doctrine. The Court has not taken that course, and some point to the treatment given to the Privileges or Immunities Clause in the 1873 Slaughter-House Cases as a reason why. Although, the Slaughter-House Court did not expressly preclude application of the Bill of Rights to the states, the Clause largely ceased to be invoked in opinions of the Court following the Slaughter-House Cases, and when incorporation did begin, it was under the rubric of due process. Scholars who share Justice Black's view, such as Akhil Amar, argue that the Framers of the Fourteenth Amendment, like Senator Jacob Howard and Congressman John Bingham
, included a Due Process Clause in the Fourteenth Amendment for the following reason: "By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would...have prevented states from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens."
The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process, and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter. When the Bill of Rights was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross," as James Madison
put it. Roger Sherman
explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution." Thus, the states were allowed to reject the Sixth Amendment, for example, while ratifying all of the other amendments including the Due Process Clause; in that case, the rights in the Sixth Amendment would not have been incorporated against the federal government. The doctrine of incorporating the content of other amendments into “due process” was thus an innovation, when it began in 1925 with the Gitlow case, and this doctrine remains controversial today.
international law
. Although the specifics are often unclear, most nations agree that they should guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they are bound to grant no more rights to aliens than they do to their own citizens—the doctrine of national treatment
—which also means that both would be vulnerable to the same deprivations by the government. With the growth of international human rights
law and the frequent use of treaties
to govern treatment of foreign nationals abroad, the distinction in practice between these two perspectives may be disappearing.
Law of the land
The phrase law of the land is a legal term, equivalent to the Latin lex terrae . It refers to all of the laws in force within a country or region, including both statute law and common law....
and thus protects individual persons from it. When a government harms a person without following the exact course of the law, this constitutes a due-process violation, which offends against the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
.
Due process has also been frequently interpreted as limiting law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
s and legal proceedings
Legal process
Legal process , are the proceedings in any civil lawsuit or criminal prosecution and, particularly, describes the formal notice or writ used by a court to exercise jurisdiction over a person or property...
(see substantive due process
Substantive due process
Substantive due process is one of the theories of law through which courts enforce limits on legislative and executive powers and authority...
), so judges - instead of legislators - may define and guarantee fundamental fairness, justice, and liberty. This interpretation has proven controversial, and is analogous to the concepts of natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
, and procedural justice
Procedural justice
Procedural justice refers to the idea of fairness in the processes that resolve disputes and allocate resources. One aspect of procedural justice is related to discussions of the administration of justice and legal proceedings...
used in various other jurisdictions. This interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically.
Due process is not used in contemporary English law, though two similar concepts are natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
(which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions) and the British constitutional concept of the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
as articulated by A. V. Dicey
A. V. Dicey
- References :...
and others. However, neither concept lines up perfectly with the American conception of due process, which, as explained below, presently contains many implied rights not found in the ancient or modern concepts of due process in England.
Due process developed from clause 39 of the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
in England. When English and American law gradually diverged, due process was not upheld in England, but did become incorporated in the Constitution of the United States.
Magna Carta
In clause 39 of the Magna CartaMagna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, John of England
John of England
John , also known as John Lackland , was King of England from 6 April 1199 until his death...
promised as follows: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." Magna Carta itself immediately became part of the "law of the land
Law of the land
The phrase law of the land is a legal term, equivalent to the Latin lex terrae . It refers to all of the laws in force within a country or region, including both statute law and common law....
", and Clause 61 of that charter authorized an elected body of twenty-five barons to determine by majority vote what redress the King must provide when the King offends "in any respect against any man." Thus, Magna Carta established the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
in England by not only requiring the monarchy to obey the law of the land, but also limiting how the monarchy could change the law of the land. It should be noted, however, that in the thirteenth century these provisions may have been referring only to the rights of landowners, and not to ordinary peasantry or villagers.
Shorter versions of Magna Carta were subsequently issued by British
British people
The British are citizens of the United Kingdom, of the Isle of Man, any of the Channel Islands, or of any of the British overseas territories, and their descendants...
monarchs, and Clause 39 of Magna Carta was renumbered "29." The phrase due process of law first appeared in a statutory rendition of Magna Carta in A.D. 1354 during the reign of Edward III of England
Edward III of England
Edward III was King of England from 1327 until his death and is noted for his military success. Restoring royal authority after the disastrous reign of his father, Edward II, Edward III went on to transform the Kingdom of England into one of the most formidable military powers in Europe...
, as follows: "No man of what state or condition he be, 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."
In 1608, the English jurist Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
wrote a treatise in which he discussed the meaning of Magna Carta. Coke explained that no man shall be deprived but by legem terrae, the law of the land, "that is, by the common law, statute law, or custom of England.... (that is, to speak it once and for all) by the due course, and process of law.."
Both the clause in Magna Carta and the later statute of 1354 were again explained in 1704 (during the reign of Queen Anne
Anne of Great Britain
Anne ascended the thrones of England, Scotland and Ireland on 8 March 1702. On 1 May 1707, under the Act of Union, two of her realms, England and Scotland, were united as a single sovereign state, the Kingdom of Great Britain.Anne's Catholic father, James II and VII, was deposed during the...
) by the Queen's Bench
King's Bench
The Queen's Bench is the superior court in a number of jurisdictions within some of the Commonwealth realms...
, in the case of Regina v. Paty. In that case, the House of Commons
British House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
had deprived John Paty and certain other citizens of the right to vote in an election, and had committed them to Newgate Prison
Newgate Prison
Newgate Prison was a prison in London, at the corner of Newgate Street and Old Bailey just inside the City of London. It was originally located at the site of a gate in the Roman London Wall. The gate/prison was rebuilt in the 12th century, and demolished in 1777...
merely for the offense of pursuing a legal action in the courts. The Queen's Bench, in an opinion by Justice Powys, explained the meaning of "due process of law" as follows:
Chief Justice Holt
John Holt (judge)
Sir John Holt was an English lawyer and served as Lord Chief Justice of England from 17 April 1689 to his death.-Biography:...
dissented in this case, because he believed that the commitment had not in fact been by a legal authority. The House of Commons had purported to legislate unilaterally, without approval of the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, ostensibly to regulate the election of its members. Although the Queen's Bench held that the House of Commons had not infringed or overturned due process, John Paty was ultimately freed by Queen Anne when she prorogued Parliament.
English law and American law diverge
Throughout centuries of BritishUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
history, many laws and treatises asserted various requirements as being part of "due process" or included in the "law of the land". This view usually held in regards to what was required by existing law, rather than what was intrinsically required by due process itself. As the U.S. Supreme Court has explained, a due process requirement in Britain was not "essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used."
Ultimately, the scattered references to "due process of law" in English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
did not limit the power of the government; about this, American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
law professor John Orth wrote that "the great phrases failed to retain their vitality." Orth points out that this is generally attributed to the rise of the doctrine of parliamentary supremacy in the United Kingdom, which was accompanied by hostility towards judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
as an undemocratic foreign invention.
Scholars have occasionally interpreted Lord Coke's ruling in Dr. Bonham's Case
Dr. Bonham's Case
Thomas Bonham v College of Physicians, commonly known as Dr. Bonham's Case or simply Bonham's Case, was decided in 1610 by the Court of Common Pleas in England under Sir Edward Coke, the court's Chief Justice...
as implying the possibility of judicial review, but by the 1870s, Lord Campbell
John Campbell, 1st Baron Campbell
John Campbell, 1st Baron Campbell PC, KC was a British Liberal politician, lawyer, and man of letters.-Background and education:...
was dismissing judicial review as "a foolish doctrine alleged to have been laid down extra-judicially in Dr. Bonham's Case..., a conundrum [that] ought to have been laughed at." Lacking the power of judicial review, English courts possessed no means by which to declare government statutes or acts invalid as a violation of due process. As a consequence, English law and American law
Law of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
diverged, with American legislators possessing no means by which to declare judicial invalidation of statutes incorrect (with the sole exception of proposing a constitutional amendment, which are rarely successful). In 1977, an English political science professor explained the present situation in England for the benefit of American lawyers:
Two similar concepts in contemporary English law are natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
(which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions) and the British constitutional concept of the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
as articulated by A. V. Dicey
A. V. Dicey
- References :...
and others. However, neither concept lines up perfectly with the American conception of due process, which presently contains many implied rights not found in the ancient or modern concepts of due process in England.
The U.S. Constitution
In the early years of the United States the terms law of the land and due process were used somewhat interchangeably. The 1776 Constitution of Maryland, for example, used the language of Magna Carta, including the law of the land phrase. In New York, a statutory bill of rights was enacted in 1787, and it contained four different due process clauses. Alexander HamiltonAlexander Hamilton
Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...
commented on the language of that New York bill of rights: "The words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature."
New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
was the only state that asked Congress to add "due process" language to the U.S. Constitution. New York ratified the U.S. Constitution and proposed the following amendment in 1788: "[N]o Person ought to be taken imprisoned or diseased of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law."
In response to this proposal from New York, James Madison drafted a Due Process Clause for Congress. Madison cut out some language, and inserted the word without, which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed, after Madison explained that the Due Process Clause would not be sufficient to protect various other rights:
No state or federal constitution in the U.S. had ever before utilized any "due process" wording, prior to 1791 when the federal Bill of Rights was ratified. However when the U.S. Constitution took effect in 1789 it contained a Supremacy Clause
Supremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...
, which specified that the Constitution itself, and federal statutes enacted pursuant to the Constitution, would be the supreme "law of the land". As mentioned, in the early United States, the terms law of the land and due process were used somewhat interchangeably.
Applicability
The Fifth AmendmentFifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
provides in part that
No person shall ... be deprived of life, liberty, or property, without due process of law; ...without any stated restrictions on its applicability, and as a duly ratified part of the supreme law of the land, it has always been applicable to any entity with the legal power to deprive one of life, liberty, and property within the jurisdiction of the United States. However, due process rights were not actually applied consistently by the courts until much later, with the ratification of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, and their steady incorporation into actual case law. The Fourteeth Amendment essentially reiterates the same phrase, but expressly applies to the states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
and was expressly extended to Puerto Rico
Puerto Rico
Puerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...
by the U.S. Supreme Court.
Therefore, those two clauses only apply against state actor
State actor
In United States law, a state actor is a person who is acting on behalf of a governmental body, and is therefore subject to regulation under the United States Bill of Rights, including the First, Fifth and Fourteenth Amendments, which prohibit the federal and state governments from violating...
s, and not against private citizens. The Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
has interpreted those two clauses identically, as Justice Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...
once explained in a concurring opinion: “To suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.”
The due process clauses apply to "legal persons" (that is, corporate personhood) as well as to individuals. Many state constitutions also have their own guarantees of due process (or the equivalent) that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to certain individuals than under federal law.
Due process also applies to the creation of taxing districts, as taxation is a deprivation of property. Due process typically requires public hearings prior to the creation of a taxing district.
The enumerated due process right
Due process under the U.S. ConstitutionUnited States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
restrains the executive and judicial branches, but additionally restrains the legislative branch. For example, as long ago as 1855, the Supreme Court explained that, to ascertain whether a process is due process, the first step is to “examine the constitution itself, to see whether this process be in conflict with any of its provisions....”
In case a person is deprived of liberty by a process that conflicts with some provision of the Constitution, then the Due Process Clause normally prescribes the remedy: restoration of that person's liberty. The Supreme Court held in 1967 that “we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights.”
Unenumerated due process rights
As a limitation on Congress, the Due Process Clause has been interpreted by the Supreme Court not only as a remedial requirement when other constitutional rights have been violated, but furthermore as having additional "procedural" and "substantive" components, meaning that the Clause purportedly imposes unenumerated restrictions on legal procedures—the ways in which laws may operate—and also on legal substance—what laws may attempt to do or prohibit. This theory of unenumerated rights is controversial. For example, Justice Clarence ThomasClarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
stated as follows, in a 2004 dissent:
Despite the objections of people like Justice Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
in Winship, the courts have attempted to extract unwritten requirements from the Due Process Clause, regarding both procedure as well as substance. The distinction between substance and procedure is difficult in both theory and practice to establish. Moreover, the substantive component of due process has proven to be even more controversial than the procedural component, because it gives the Court considerable power to strike down state and federal statutes that criminalize various activities.
By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme Court to mean that “it was not left to the legislative power to enact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will.” But determining what those restraints are has been a subject of considerable disagreement.
Procedural due process
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, criminal prosecutions and civil cases are generally governed by explicit guarantees of procedural rights under the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
. Most of these rights have been incorporated
Incorporation (Bill of Rights)
The incorporation of the Bill of Rights is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to the 1890s, the Bill of Rights was held only to apply to the federal government...
under the Fourteenth Amendment to the States
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
. Among those rights is the constitutional right to procedural due process, which has been broadly construed to protect the individual so that statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s, regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
s, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair opportunity to affect the judgment or result.
This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
, which guarantees reliable procedures that protect innocent people from being executed, which would be an obvious example of cruel and unusual punishment.
At a basic level, procedural due process is essentially based on the concept of "fundamental fairness." For example, in 1934, the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.
Or, to put it more simply, where an individual is facing a (1) deprivation of (2) life, liberty, or property, (3) procedural due process mandates that he or she is entitled to adequate notice, a hearing, and a neutral judge.
The Supreme Court has formulated a balancing test
Balancing test
A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such tests argue that they allow a deeper consideration of complex issues than a bright line rule can allow...
to determine the rigor with which the requirements of procedural due process should be applied to a particular deprivation, for the obvious reason that mandating such requirements in the most expansive way for even the most minor deprivations would bring the machinery of government to a halt. The Court set out the test as follows: "[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
Procedural due process has also been an important factor in the development of the law of personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it whatsoever. A significant portion of U.S. constitutional law is therefore directed to what kinds of connections to a state are enough for that state's assertion of jurisdiction over a nonresident to comport with procedural due process.
The requirement of a neutral judge has introduced a constitutional dimension into the question of whether a judge should recuse himself or herself from a case. Specifically, the Supreme Court has ruled that in certain circumstances, the Due Process Clause of the Fourteenth Amendment requires a judge to recuse himself on account of a potential or actual conflict of interest
Conflict of interest
A conflict of interest occurs when an individual or organization is involved in multiple interests, one of which could possibly corrupt the motivation for an act in the other....
. For example, on June 8, 2009, in Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia
Supreme Court of Appeals of West Virginia
The Supreme Court of Appeals of West Virginia is the state supreme court of West Virginia, the highest of West Virginia's state courts. It is located in the state capital, Charleston....
could not participate in a case involving a major donor to his election to that court.
Substantive due process
The term "substantive due process" (SDP), is commonly used in two ways: first to identify a particular line of case law, and second to signify a particular attitude toward judicial reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
under the Due Process Clause. The term "substantive due process" began to take form in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions. SDP involves liberty-based due process challenges which seek certain outcomes instead of merely contesting procedures and their effects; in such cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope. Critics of SDP decisions typically assert that those liberties ought to be left to the more politically accountable branches of government.
Courts have viewed the Due Process Clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are “implicit in the concept of ordered liberty.” Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights have long histories or “are deeply rooted” in American society.
The courts have largely abandoned the Lochner era
Lochner era
The Lochner era is a period in American legal history in which the Supreme Court of the United States tended to strike down laws held to be infringing on economic liberty or private contract rights, and takes its name from a 1905 case, Lochner v. New York. The beginning of the period is usually...
approach (ca. 1897-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract
Freedom of contract
Freedom of contract is the freedom of individuals and corporations to form contracts without government restrictions. This is opposed to government restrictions such as minimum wage, competition law, or price fixing...
. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions, and alternatively they could be protected by legislatures.
Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, which originated in United States v. Carolene Products Co., , footnote 4. Those three types of rights are:
- the first eight amendments in the Bill of RightsUnited States Bill of RightsThe Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
(e.g. the Eighth AmendmentEighth Amendment to the United States ConstitutionThe Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
); - restrictions on the political process (e.g. the rights of voting, association, and free speech); and
- the rights of “discrete and insular minorities.”
The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test
Rational basis review
Rational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.
Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut
Griswold v. Connecticut
Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...
(1965), wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbra
Umbra
The umbra, penumbra and antumbra are the names given to three distinct parts of a shadow, created by any light source. For a point source only the umbra is cast.These names are most often used to refer to the shadows cast by celestial bodies....
s", or shadowy edges, of certain amendments that arguably refer to certain privacy rights. The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights. Although it has never been the majority view, some have argued that the Ninth Amendment
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...
(addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg
Arthur Goldberg
Arthur Joseph Goldberg was an American statesman and jurist who served as the U.S. Secretary of Labor, Supreme Court Justice and Ambassador to the United Nations.-Early life:...
concurring in Griswold.
Criticisms
Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...
. Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott, but claim that it was employed incorrectly. Additionally, the first appearance of substantive due process as a concept appeared earlier in the case of Bloomer v. McQuewan, . Chief Justice Taney
Roger B. Taney
Roger Brooke Taney was the fifth Chief Justice of the United States, holding that office from 1836 until his death in 1864. He was the first Roman Catholic to hold that office or sit on the Supreme Court of the United States. He was also the eleventh United States Attorney General. He is most...
was not entirely breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the Missouri Compromise
Missouri Compromise
The Missouri Compromise was an agreement passed in 1820 between the pro-slavery and anti-slavery factions in the United States Congress, involving primarily the regulation of slavery in the western territories. It prohibited slavery in the former Louisiana Territory north of the parallel 36°30'...
unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." Dissenting Justice Curtis
Benjamin Robbins Curtis
Benjamin Robbins Curtis was an American attorney and United States Supreme Court Justice.Curtis was the first and only Whig justice of the Supreme Court. He was also the first Supreme Court justice to have a formal legal degree and is the only justice to have resigned from the court over a matter...
disagreed with Taney about what "due process" meant in Dred Scott.
Criticisms of the doctrine continue as in the past. Critics argue that judges are making determinations of policy and morality that properly belong with legislators (i.e. "legislating from the bench"), or argue that judges are reading views into the Constitution that are not really implied by the document, or argue that judges are claiming power to expand the liberty of some people at the expense of other people's liberty (e.g. as in the Dred Scott case), or argue that judges are addressing substance instead of process.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
, a realist
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents:
Originalists
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
, such as Supreme Court Justice Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
, who rejects substantive due process doctrine, and Supreme Court Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, who has also questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation" or an "oxymoron." Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued over how substantive due process should be employed based on Court precedent.
Many non-originalists, like Justice Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will." In his book Democracy and Distrust, non-originalist John Hart Ely
John Hart Ely
John Hart Ely is one of the most widely-cited legal scholars in United States history, ranking just after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes, Jr., according to a 2000 study in the University of Chicago's Journal of Legal Studies.-Biography:Born in New York City, John Hart...
criticized "substantive due process" as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase green pastel redness.
Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case: "[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments."
Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process, and instead most originalists believe that such rights should be identified and protected legislatively, or via further constitutional amendments, or via other existing provisions of the Constitution.
The perceived scope of the Due Process Clause was originally different than it is today. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African-Americans, a "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment.... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause."
Levels of scrutiny
When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts nowadays primarily use two forms of scrutiny, or judicial reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
, which is used by the Judicial Branch. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
—is used. To pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.
When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review
Rational basis review
Rational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
is used. Here a legitimate government interest is enough to pass this review. There is also a middle level of scrutiny, called intermediate scrutiny
Intermediate scrutiny
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review and strict scrutiny ....
, but it is primarily used in Equal Protection cases rather than in Due Process cases: “The standards of intermediate scrutiny have yet to make an appearance in a due process case.”
Incorporation of the Bill of Rights into due process
Incorporation is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's Due Process Clause. The basis for incorporation is substantive due process regarding substantive rights enumerated elsewhere in the Constitution, and procedural due process regarding procedural rights enumerated elsewhere in the Constitution.Incorporation started in 1897 with a takings case, continued with Gitlow v. New York (1925), which was a First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
case, and accelerated in the 1940s and 1950s. Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
famously favored the jot-for-jot incorporation of the entire Bill of Rights. Justice Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...
, however—joined later by Justice John M. Harlan
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
—felt that the federal courts should only apply those sections of the Bill of Rights that were "fundamental to a scheme of ordered liberty." It was the latter course that the Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
Court of the 1960s took, although, almost all of the Bill of Rights has now been incorporated jot-for-jot against the states.
The role of the incorporation doctrine in applying the guarantees of the Bill of Rights to the states is just as notable as the use of due process to define new fundamental rights that are not explicitly guaranteed by the Constitution's text. In both cases, the question has been whether the right asserted is "fundamental", so that, just as not all proposed "new" constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.
Some people, such as Justice Black, have argued that the Privileges or Immunities Clause
Privileges or Immunities Clause
The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. It states:Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868....
of the Fourteenth Amendment would be a more appropriate textual source for the incorporation doctrine. The Court has not taken that course, and some point to the treatment given to the Privileges or Immunities Clause in the 1873 Slaughter-House Cases as a reason why. Although, the Slaughter-House Court did not expressly preclude application of the Bill of Rights to the states, the Clause largely ceased to be invoked in opinions of the Court following the Slaughter-House Cases, and when incorporation did begin, it was under the rubric of due process. Scholars who share Justice Black's view, such as Akhil Amar, argue that the Framers of the Fourteenth Amendment, like Senator Jacob Howard and Congressman John Bingham
John Bingham
John Armor Bingham was a Republican congressman from Ohio, America, judge advocate in the trial of the Abraham Lincoln assassination and a prosecutor in the impeachment trials of Andrew Johnson...
, included a Due Process Clause in the Fourteenth Amendment for the following reason: "By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would...have prevented states from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens."
The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process, and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter. When the Bill of Rights was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross," as James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
put it. Roger Sherman
Roger Sherman
Roger Sherman was an early American lawyer and politician, as well as a founding father. He served as the first mayor of New Haven, Connecticut, and served on the Committee of Five that drafted the Declaration of Independence, and was also a representative and senator in the new republic...
explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution." Thus, the states were allowed to reject the Sixth Amendment, for example, while ratifying all of the other amendments including the Due Process Clause; in that case, the rights in the Sixth Amendment would not have been incorporated against the federal government. The doctrine of incorporating the content of other amendments into “due process” was thus an innovation, when it began in 1925 with the Gitlow case, and this doctrine remains controversial today.
Due process around the world
Various countries recognize some form of due process under customaryCustom (law)
Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:...
international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
. Although the specifics are often unclear, most nations agree that they should guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they are bound to grant no more rights to aliens than they do to their own citizens—the doctrine of national treatment
National treatment
National treatment is a principle in international law vital to many treaty regimes. It essentially means treating foreigners and locals equally. Under national treatment, if a state grants a particular right, benefit or privilege to its own citizens, it must also grant those advantages to the...
—which also means that both would be vulnerable to the same deprivations by the government. With the growth of international human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
law and the frequent use of treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
to govern treatment of foreign nationals abroad, the distinction in practice between these two perspectives may be disappearing.
See also
- continuanceContinuanceIn American procedural law, a continuance is the postponement of a hearing, trial, or other scheduled court proceeding at the request of either or both parties in the dispute, or by the judge sua sponte. In response to delays in bringing cases to trial, some states have adopted "fast-track" rules...
- fair procedureFair procedureFair procedure is a common law doctrine that arises from a line of groundbreaking decisions of the Supreme Court of California dating back to the 1880s...
- fundamental justiceFundamental justiceFundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
- peremptory normPeremptory normA peremptory norm is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted.There is no clear agreement regarding precisely which norms are jus cogens nor how a norm reaches that status, but...
- subpoena ad testificandumSubpoena ad testificandumA subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the Ecclesiastical Courts of the High Middle Ages, especially in England...
- subpoena duces tecumSubpoena duces tecumA subpoena duces tecum is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial....
Further reading
- Goldberg v. Kelly
- Shipley, David E. Due Process Rights Before EU Agencies: The Rights of Defense Article discussing the procedural safeguards that have been recognized in the EU and the parallels between procedural due process in the United States and the rights of defense in the EU.
- Sudbury Valley School (1970). Due Process of Law in School. A school where order and discipline is achieved by a dual approach based on a free and democratic framework: a combination of popularly-based authority, when rules and regulations are made by the community as a whole, fairly and democratically passed by the entire school community, supervised by a good judicial system for enforcing these laws—due process of law—and developing internal discipline in the members of the community by enhancing their ability to bear responsibility and self-sufficiency. Discussing potential of liberty rights to overtake equality rights.