due process

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noun

The state, action, or principle of treating all persons equally in accordance with the law: equity, justice. See right/wrong.

The concept of due process derives from the Magna Carta (1215), the great charter of English liberties whereby the nobles limited the king's authority. Its phrase “law of the land” was transformed over the years to “due process of law,” a phrase included in 1692 in a Massachusetts statute. The Fifth Amendment of the Constitution (ratified 1791) requires that the federal government not deprive any person of “life, liberty, or property without due process of law.” The same language is included in the Fourteenth Amendment (ratified 1868) as a constraint on the states.

The central aim of due process doctrine is to assure fair procedure when the government imposes a burden on an individual. The doctrine seeks to prevent arbitrary government, avoid mistaken deprivations, allow persons to know about and respond to charges against them, and promote a sense of the legitimacy of official behavior.

Procedural due process does not prevent the government ultimately from making a deprivation. The notion of substantive due process does place substantive limits on official power, whereas procedural due process is concerned solely with the manner in which the government acts. This distinction appears in Londoner v. Denver (1908) and Bi‐Metallic Investment Co. v. State Board of Equalization (1915). Taken together, these cases distinguish between the situation in which government singles out an individual for a deprivation based on the facts of a case, which triggers procedural due process requirements, and a broad rule affecting large numbers of people, which does not. In the former cases, the government must provide the procedural protections of notice and hearing; as the Supreme Court held in Grannis v. Ordean, (1914), “[t]he fundamental requisite of due process of law is the opportunity to be heard” (p. 394).

A governmental deprivation of an individual's property will implicate due process. Property has a common‐law meaning, including land and personal property. In the 1970s, the Court articulated a “new property” concept, which includes government‐provided benefits, licenses, or statuses (such as that of public employee) that have value, are relied upon by individuals, and can be called statutory, regulatory, or contractual entitlements. A statutory benefit such as welfare (Goldberg v. Kelly, 1970), a driver's license (Bell v. Burson, 1971), the expectation of continued employment as a tenured professor (Board of Regents v. Roth, 1972), and the status of a civil servant protected from at‐will dismissal (Arnett v. Kennedy, 1974), are examples of such “new property” interests. The Court held in Roth that the mere hope or unilateral expectation of some property interest is not enough.

The term “liberty” has its own history. In the Fourteenth Amendment, “liberty” has been held to incorporate major protections of the Bill of Rights. “Liberty” also has an independent meaning in, for example, the criminal context. Basic freedom from incarceration, as well as a parolee's interest in staying on parole (Morrissey v. Brewer, 1972), are liberty interests. Liberty in the civil context includes certain personal interests in privacy, which were recognized in a series of substantive due process cases, notably Roe v. Wade (1973). In civil cases involving procedural claims, several interests have been recognized as “liberty”—such as the interest in parental status (Lassiter v. Department of Social Services, 1981) or a school child's interest in being free from corporal punishment (Ingraham v. Wright, 1977).

The Court in Cleveland Board of Education v. Loudermill (1985) separated the issue of whether due process is triggered from the question of how much process is “due.” A court is to weigh the extent of an individual's interest in additional procedure, as well as its value and cost. Mathews v. Eldridge (1976) held a post‐termination evidentiary hearing to be sufficient due process in a disability‐benefit termination case. Mathews gives courts much leeway. Sometimes, a fairly full, trial‐type hearing is required. At other times, a court simply requires basic notice and opportunity to speak.

The many due process cases that come before the federal courts—involving prisons, schools, social security, and public employment, among other areas—testify to the continuing centrality of this area of law and the undiminished controversy surrounding it. Increasingly, two opposing visions dominate: a personal participation model, which stresses dignitary values and greater procedure, and a bureaucratic model, which stresses efficient and cost‐effective decision making. This tension is likely to persist.

— Thomas O. Sargentich

The administration of justice in accordance with established rules and principles. This cardinal principle of limited government of great antiquity is embedded in clause 39 of Magna Carta (1215). ‘No free man shall be taken or imprisoned, or dispossessed, or outlawed, or banished, or in any way destroyed,…except by the legal judgment of his peers or by the law of the land.’ Subsequently this right was extended to all subjects and ‘law of the land’ became synonymous with ‘due process of law’. It is this terminology that appears in key amendments to the United States Constitution. The Fifth Amendment (1791), one of those that comprise the so-called bill of rights, was designed to ensure that the federal government did not deprive citizens of their ‘life, liberty, or property, without due process of law’. Identical wording is to be found in the Fourteenth Amendment (1868) which provides Americans with similar protection against the governments of the states. This clause has played a dramatic part in the judicial activism of the supreme court since the 1950s, notably in civil rights cases.

— David Mervin

The 5th and 14th Amendments to the U.S. Constitution guarantee individuals the right of due process of law, which is often referred to simply as “due process.” The 5th Amendment states, “No person shall be…deprived of life, liberty, or property, without due process of law.” The 14th Amendment states, “No state shall…deprive any person of life, liberty, or property, without due process of law.”

These two due process clauses provide that the government must act fairly, according to established legal procedures, with regard to a person's rights to life, liberty, and property. Due process means, for example, that an individual accused of a crime is guaranteed certain legal procedural rights, such as the right to know the charges against him, to confront his accusers in court, to have legal counsel, and to have a jury trial. These and other rights of the accused are specified in the 4th, 5th, 6th, and 8th Amendments to the Constitution.

Procedural due process

These rights of the accused are examples of procedural due process, and they are constitutional limits on the power of government designed to protect the rights and liberties of individuals.

Procedural due process—the idea that government must follow fair and generally accepted legal procedures in its actions against individuals—has been traced to the great English charter of liberty, the Magna Carta (1215). By signing this document, King John of England agreed to “obey the law of the land.” This idea developed into the legal guarantee of procedural due process of law to protect people against arbitrary or lawless punishments or penalties imposed by the government.

Due process of law was included in an act of the English Parliament in 1354, which affirmed the Magna Carta and specified “that no man…shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought to Answer by due Process of Law.” This English concept of due process was brought to North America by English colonists and was included in their colonial charters and laws. The Massachusetts Body of Liberties (1641), for example, provided that an individual could not be deprived of life, liberty, and property except by “some express law of the country warranting the same, established by a General Court and sufficiently published.” The first American statute to use the words “due process of law” was an act of the colonial government of Massachusetts in 1682.

The original state constitutions, drafted during the founding era of the United States (1776–83), included rights of procedural due process. They typically limited these rights to the traditional “law of the land” idea that stems from the Magna Carta. The Northwest Ordinance, enacted by the U.S. Congress in 1787 to regulate new territories north and west of the Ohio River, also guaranteed procedural due process rights by declaring, “[N]o man shall be deprived of his liberty or property but by the judgment of his peers, or the law of the land.”

By 1789, when the federal Bill of Rights was drafted by the first Congress, the concept of due process was an established part of American constitutions and criminal law. Consequently, it was expected that the right of due process would be included in the Bill of Rights.

Substantive due process

During the 20th century, the Supreme Court has reinforced and extended individual rights. This has been done through the development of substantive due process and the nationwide application of the federal Bill of Rights through the due process clause of the 14th Amendment.

Substantive due process concerns specific behaviors of individuals that, according to the Court, are generally beyond the reach of government power, such as the free exercise of religion or participation in private organizations that petition the government about public problems and issues. The government may not regulate these actions, not even by the use of the fairest legal procedures, because to do so would violate the most fundamental rights of individuals in a constitutional government, such as rights to liberty, property, and equality under the law. If government of ficials want to regulate these kinds of usually protected actions, they must demonstrate that they cannot achieve a legitimate public purpose by any other means.

From the 1890s through the 1920s, the Court tended to use substantive due process to protect the property rights of business owners against state government regulations of working conditions, wages paid to employees, and hours of work. Since the 1930s, and especially since the 1960s, the Court has used substantive due process to protect the civil rights of individuals, especially racial minorities and women, against state government actions that threatened these fundamental rights. Thus, the Court has used substantive due process to invalidate hundreds of state laws pertaining to a wide variety of social and economic concerns and civil rights, such as fair conditions of employment.

The Court has, however, permitted state governments to regulate minimum wages and the working hours of employees in private businesses. These state regulations have been upheld, as necessary for the public good, against claims by business owners that they violate private property rights of individuals. This was the Court's ruling in West Coast Hotel Co. v. Parrish (1937), an early example of the use of substantive due process to protect and extend the rights of employees.

In the 20th century, the Supreme Court has used the due process clause of the 14th Amendment, which limits the powers of state governments, to apply most of the rights guaranteed by the federal Bill of Rights to the states. This use of the due process clause to protect the individual rights specified in the Bill of Rights against infringement by state and local governments has been referred to as the incorporation doctrine. This process has occurred gradually, on a case-by-case basis.

The Court's use of the incorporation doctrine and substantive due process has been controversial. Critics charge that substantive due process is a distortion of the original meaning of due process, which involved only adherence to formal and fair procedures by government officials in actions against individuals. Further, critics say that substantive due process has been used by judges to interfere in matters that should be left to resolution by majority vote in Congress or state legislatures. Finally, critics claim that substantive due process and the incorporation doctrine have been used by the U.S. Supreme Court to wrongly suppress the authority and power of state governments.

Virtually no one challenges the general value of due process of law as a guarantee of procedural consistency and fairness. Justice Felix Frankfurter expressed a commonly held view about procedural due process in Malinski v. New York (1945): “The history of American freedom is, in no small measure, the history of procedure.” And in Shaughnessy v. United States (1953), Justice Robert Jackson stressed that controversy about substantive due process does not change the most fundamental and general agreement about procedural fairness, which “is what it [due process] most uncompromisingly requires.”

See also Bill of Rights; Incorporation doctrine; West Coast Hotel Co. v. Parrish

Sources

• Fred Graham, The Due Process Revolution: The Warren Court's Impact on Criminal Law (New York: Hayden, 1970)

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

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

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

The concept of due process originated in English common law. The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions and was widely accepted in England. The Magna Charta, an agreement signed in 1215 that defined the rights of English subjects against the king, is an early example of a constitutional guarantee of due process. That document includes a clause that declares, "No free man shall be seized, or imprisoned … except by the lawful judgment of his peers, or by the law of the land" (ch. 39). This concept of the law of the land was later transformed into the phrase "due process of law." By the 1600s, Great Britain's American colonies were using the phrase "due process of law" in their statutes.

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

Substantive Due Process

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

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

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

This interpretation of the Due Process Clause put the Court in direct opposition to many of the reforms and regulations passed by state legislatures during the Progressive Era of the early twentieth century. Justices opposed to the Court's position in such cases, including Oliver Wendell Holmes, Jr., and John M. Harlan, saw such rulings as unwarranted judicial activism in support of a particular free-market ideology.

During the 1930s, the Court used the doctrine of substantive due process to strike down federal legislation as well, particularly legislation associated with President Franklin D. Roosevelt's New Deal. After a 1937 court-packing scheme in which Roosevelt attempted to overcome Court opposition to his programs by appointing additional justices, the Court changed its position on substantive due process and began to uphold New Deal legislation. Now, a majority on the Court, including Chief Justice Charles E. Hughes and Justice Benjamin N. Cardozo, abandoned the freedom-of-contract version of substantive due process.

Chief Justice Hughes, in his opinion for West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937), which upheld a Washington State minimum wage law, argued that the Constitution nowhere mentioned a freedom of contract. He questioned not the doctrine of substantive due process itself, but the freedom-of-contract ideology that had dominated its interpretation for decades. The state, he argued, had the right to promote the health and welfare of its citizens through passing appropriate and reasonable laws.

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

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

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

Procedural Due Process

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

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

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

See: judicial review; Criminal Procedure; Gideon v. Wainwright; Gitlow v. New York; Griswold v. Connecticut; Labor Law; Lochner v. New York; Right to Counsel; Roe v. Wade.

The principle that an individual cannot be deprived of life, liberty, or property without appropriate legal procedures and safeguards. The Bill of Rights and the Fourteenth Amendment to the Constitution guarantee that any person accused of a crime must be informed of the charges, be provided with legal counsel, be given a speedy and public trial, enjoy equal protection of the laws, and not be subjected to cruel and unusual punishment, unreasonable searches and seizures, double jeopardy, or self-incrimination.

The rules governing the fair practice of law. Due process dictates that everyone is equal in the eyes of the law, and it also states that the law must be fair and clearly stated to prevent arbitrary actions by the state.

• Customs, Formalities, and Practices - due process: orderly administration of justice by proper court according to established rules and laws, entitling one to proper notice and fair opportunity to be heard

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Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person. Due process balances the power of law of the land and 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 laws and legal proceedings (see substantive due process), so that 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.^[1] However, neither concept lines up perfectly with the American theory 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.^[2]

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.

Contents 1 By jurisdiction 1.1 England 1.1.1 Magna Carta 1.1.2 English law and American law diverge 1.2 United States 1.3 Others 2 See also 3 Notes 4 Further reading 5 External links

By jurisdiction

England

Magna Carta

In clause 39 of the Magna Carta, 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."^[3] 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."^[3] 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.^[4]

Shorter versions of Magna Carta were subsequently issued by British monarchs, and Clause 39 of Magna Carta was renumbered "29."^[5] 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."^[6]

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.."^[7]

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.^[8] 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.^[9] The Queen's Bench, in an opinion by Justice Powys, explained the meaning of "due process of law" as follows:

[I]t is objected, that by Mag. Chart. c. 29, no man ought to be taken or imprisoned, but by the law of the land. But to this I answer, that lex terrae is not confined to the common law, but takes in all the other laws, which are in force in this realm; as the civil and canon law.... By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority.^[8]

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.^[10] 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 British 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."^[11]

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."^[12] 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.^[13]

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."^[14] 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 is rarely successful). In 1977, an English political science professor explained the present situation in England for the benefit of American lawyers:

“

An American constitutional lawyer might well be surprised by the elusiveness of references to the term 'due process of law' in the general body of English legal writing... Today one finds no space devoted to due process in Halsbury's Laws of England, in Stephen's Commentaries, or Anson's Law and Custom of the Constitution. The phrase rates no entry in such works as Stroud's Judicial Dictionary or Wharton's Law Lexicon.[15]

”

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.^[1] 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.^[2]

United States

Main article: Due Process Clause

The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. The Supreme Court of the United States interprets the Clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.

Others

Various countries recognize some form of due process under customary 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.

See also

continuance fair procedure fundamental justice peremptory norm

subpoena ad testificandum subpoena duces tecum

Notes

1. ^ ^{a b} Marshall, 69.
2. ^ ^{a b} Marshall, 69–70.
3. ^ ^{a b} The Text of Magna Carta (1215)
4. ^ McKechnie, William Sharp (1905). Magna Carta: A Commentary on the Great Charter of King John. Glasgow: Robert MacLehose and Co., Ltd.. pp. 136–37. http://books.google.com/books?id=RCWIAAAAMAAJ. : "The question must be considered an open one; but much might be said in favor of the opinion that 'freeman' as used in the Charter is synonymous with 'freeholder'...."
5. ^ The Text of Magna Carta (1297)
6. ^ 28 Edw. 3, c. 3
7. ^ 2 Institutes of the Laws of England 46 (1608)
8. ^ ^{a b} Regina v. Paty, 92 Eng. Rep. 232, 234 (1704) reprinted in Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas: In the Reigns of the Late King William, Queen Anne, King George the First, and King George the Second, Volume 2, page 1105, 1108 (1792).
9. ^ Dudley Julius Medly, A Student's Manual of English Constitutional History 613 (1902)
10. ^ George Godfrey Cunningham,4 Lives of Eminent and Illustrious Englishmen 54 (1835)
11. ^ Hurtado v. California, 110 U.S. 516 (1884)
12. ^ John V. Orth, Due Process of Law: A Brief History (Lawrence, KS: University Press of Kansas, 2003), 30-31.
13. ^ Orth, 28-30.
14. ^ Orth, 29.
15. ^ Geoffrey Marshall, "Due Process in England", in Nomos XVIII: Due Process, eds. J. Roland Pennock & John W. Chapman, 69-92 (New York: New York University Press, 1977), 69.

Further reading

• Goldberg v. Kelly
• "U.S. Constitution: Fifth Amendment". Findlaw. http://conlaw.usatoday.findlaw.com/constitution/amendment05/index.html. 
• Bernstein, David (2011). Rehabilitating Lochner: Defending Individual Rights against Progressive Reform. Chapter 1. Chicago: University of Chicago Press. ISBN 0-307-26313-4. 
• Breyer, Stephen (2005). Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf. ISBN 0-307-26313-4. 
• Friendly, Henry J. (1975). "Some Kind of Hearing". University of Pennsylvania Law Review (University of Pennsylvania Law Review, Vol. 123, No. 6) 123 (6): 1267–1317. doi:10.2307/3311426. JSTOR 3311426. 
• Hawkins, Brian (2006). "The Glucksberg Renaissance: Substantive Due Process since Lawrence v. Texas". Michigan Law Review 105 (2): 409. http://students.law.umich.edu/mlr/archive/105/2/hawkins.pdf. 
• Hyman, Andrew (2005). "The Little Word ‘Due’". Akron Law Review 38: 1. http://www.andrewhyman.com/due.html. 
• Kadish, Sanford H. (1957). "Methodology and Criteria in Due Process Adjudication—A Survey and Criticism". Yale Law Journal 66 (3): 319–363. JSTOR 793970. 
• Madison, P. A. (2008). "A Dummies Guide to Understanding the Fourteenth Amendment". FederalistBlog.us. http://federalistblog.us/mt/articles/14th_dummy_guide.htm. 
• Nowak, John; Rotunda, Ronald (2000). Constitutional Law. West. 
• Ring, Kevin (2004). Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice. Washington: Regnery. ISBN 0-89526-053-0. 
• 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.
• Yoshino, Kenji (2006-01-15). "The Pressure to Cover: The New Civil Rights". The New York Times Magazine. http://www.nytimes.com/2006/01/15/magazine/15gays.html. Retrieved 2010-05-01.  Discussing potential of liberty rights to overtake equality rights.

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