Due Process of Law encompasses several doctrines of U.S. Constitutional law protecting important liberties from limitation and requiring that citizens only be deprived of rights or property through valid and fair procedures.
These doctrines are rooted in the common law, state constitutions, the Bill of Rights, and the Fifth and Fourteenth Amendments. The Fifth Amendment limits the national government: "No person shall … be deprived of life, liberty, or property, without due process of law." Section one of the Fourteenth Amendment correspondingly binds the states. Constitutions in the fifty states incorporate similar requirements.
Due process of law has many sources. It is a descendent of the Aristotelian idea of the rule of law, that the best state is one governed by laws rather than by men. It is rooted in a requirement of Magna Carta, accepted by King John in 1215 and finally confirmed in 1297 by Edward I. Chapter 29 (chapter 39 in 1215) states,
"No Freeman shall be taken, or imprisoned, or be disseised [dispossessed] of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right."
This formula was restated in a statute of 1354, which declared "no man … shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." The influence of Magna Carta in English law, however, was not great during the later feudal age.
The influence of Magna Carta and chapter 39 revived in England just before the founding of the English colonies in America. In a series of opinions from the bench, English judges—particularly Sir Edward Coke, Chief Justice under James I—argued according to Magna Carta and "the ancient constitution" it enshrined that law must be based in courts alone, that judges must be independent from executive influence, and that neither King, Church, nor sheriffs could enter houses without warrants, raise taxes without Parliament, or make arrests not according to the law. These arguments were printed in Sir Edward Coke's Reports of Cases, in his Second Institute of the Laws of England, and in the Petition of Right, which he wrote and which passed Parliament in 1628. Coke's Reports and Institutes were the standard books for students and lawyers in the American colonies and early republic. In his Second Institute commentary on Magna Carta, Coke equated the "law of the land" with "due process of law," and so due process was made to encompass the broadest meaning of the common law, a meaning accepted both by Sir William Blackstone in his Commentaries and by the lawyers of colonial and early federal America. Perhaps more importantly, the Petition of Right was reaffirmed in the English Bill of Rights of 1689, which became a model for colonists who wrote similar provisions into colonial charters and for Americans seeking a Bill of Rights.
Thomas Jefferson's Lockean understanding of the state was a further influence. In 1690 John Locke wrote his Second Treatise, which much impressed the founding generation. Man in a state of nature, Locke argued, was free "to preserve his property—that is, his life, liberty, and estate," from the deprivations of others, judging them as he sees fit. But man in political society must cede this power to the community. The community's legislature was limited only by an obligation that Locke derived from natural law, although it echoed the common-law maxim, salus populi suprema lex ("the welfare of the people is the highest law"): "Their power in the utmost bounds of it is limited to the public good of the society." Such sentiments reverberated in Baron de Montesquieu's Spirit of the Laws (1748). It was this philosophical tradition that informed Thomas Jefferson's assertion in the Declaration of Independence that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." The first abuse of the Crown Jefferson listed to justify rebellion was that the king had "refused his Assent to Laws, the most wholesome and necessary for the public good."
These two strains of thought—the revived Magna Carta and a belief in "the rule of law to the good of the people"—influenced the early constitutions of the independent American states. For example, the Connecticut Constitutional Ordinance of 1776 required,
"That no Man's Life shall be taken away: No Man's Honor or good Name shall be stained: No Man's Person shall be arrested, restrained, banished, dismembered, nor any Ways punished, No Man shall be deprived of his Wife or Children: No Man's Goods or Estate shall be taken away from him nor any Ways indamaged under the Colour of Law, or Countenance of Authority; unless they be clearly warranted by the Laws of this State."
Virginia's Declaration of Rights required that "no man be deprived of his liberty except by the law of the land, or the judgment of his peers."
During the ratification debates of the 1780s, the agreement famously reached among sponsors and critics of the proposed constitution was struck following ratification of a bill of individual rights. When James Madison introduced the Bill of Rights, he drew its provisions primarily from proposals by the various states, four of which—New York, North Carolina, Virginia, and Pennsylvania—had proposed that no person be deprived of liberty except according to the law of the land or according to due process of law. Madison included a "due process of law" provision, based on New York's submission and reflecting its constitution. The Fifth Amendment was adopted and ratified with little debate.
Cases in the Supreme Court under the Due Process Clause were rare and initially limiting of its scope. In The Schooner Betsy, 8 US 443 (1807), Chief Justice Marshall ruled that the seizure of a vessel did not require a jury trial to ensure due process, because such cases are considered in admiralty court, which does not require a jury. In United States v. Bryan and Woodcock, 13 US 374 (1815), the Court rejected an argument that due process was violated by federal claims against the estate of a dead bankrupt. The most important limit to the amendment, however, was the Court's rebuff of attempts to bind the states to its terms (see Barron v. Baltimore, 32 US 243 [1833]; Withers v. Buckley, 61 US 84 [1857]).
The first constructive applications of due process in the Court were a passing comment by Justice William Johnson that Magna Carta was "intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice" (Bank of Columbia v. Okely, 17 US 235 [1819]), and a reference by Justice Joseph Story to arguments that the state could limit the privileges of a college with a royal charter only pursuant to due process of law. In the latter case, Trustees of Dartmouth College v. Woodward, 17 US 518 (1819), Story agreed with the argument of Daniel Webster, who had argued that due process, or law of the land, is "the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society." This definition was widely accepted. (See Thomas M. Cooley's Constitutional Limitations, 1868.)
The earliest cases in which the Fifth Amendment limited Congressional action involved attempts to enforce the rights of slaveholders. Justice Baldwin, dissenting in a case construing state slavery laws, noted that state laws define what is property, even including slaves, so that "under the fifth amendment of the Constitution, these rights do not consist merely in ownership; the right of disposing of property of all kinds, is incident to it, which Congress cannot touch" (Groves v. Slaughter, 40 US 449 [1841]). This view that due process limited not only how a right may be lost but also what rights can be taken through legislation was widely held among state courts (see Wynehamer v. People, 13 NY 378 [1855]). Thus when in Dred Scott v. Sanford, 60 US 393 (1857), the Supreme Court finally confronted the question of whether Congress could limit slavery, with dreadful predictability the Court held that under the Fifth Amendment, Congress could not limit the property rights of slaveholders entering federal territories. The Dred Scottcase was a severe blow to the Court's prestige, and in later years its memory would underscore arguments to limit the application of due process over the substance of laws.
During Reconstruction, Congress passed and the states ratified, the Southern states under compulsion, the Fourteenth Amendment. Section one of that amendment provides, "No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This latter clause, intended to ensure that no state discriminated against groups, such as the freedmen of the South or the Germans of the North, made specific an idea that once had been only implicitly within the scope of due process. (See Equal Protection of the Law.) The drafters of the Fourteenth Amendment made a further distinction, between "law" and "the laws." One reading of this difference is that "the laws" are those actually passed by legislatures, while "law" remains the ideal of the common law.
In the late nineteenth century, the Court employed due process among several tools curbing Congressional and state power to regulate labor and commerce. In the Slaughterhouse Cases, 83 US 36 (1873), Justices Bradley and Swayne argued, in dissent, that a state law granting a monopoly deprived the people of liberty and property in their choice of employment. The right of choice in adopting lawful employments is, "a portion of their liberty: their occupation is their property." This view, quickly adopted by state courts, was later accepted by the Court's majority and applied in a series of cases ruling that the Due Process Clause and the Contracts Clause forbade statutes limiting child labor, wage and hour laws, and laws requiring safe or sanitary working conditions (for example, Allgeyer v. Louisiana, 165 US 578 [1897]; Lochner v. New York, 198 US 45 [1905]). The seeds of doubt had been sown, however, and Oliver Wendell Holmes argued in an influential dissent in Lochner that due process did not enshrine one economic theory of the law.
The pressures of the Great Depression, the influence on judges of progressivism and legal realism, and the drumbeat of legislation from the states and the Congress led the Court to severely limit its broad use of due process to evaluate legislation. (See Police Power.) In National Labor Relations Board v. Jones and Laughlin (1937), the Court ruled that it would defer to Congress and to agencies in regulating commerce, interfering only if the statute or action was unreasonable. Similar deference was extended to labor and property regulation. "Reasonableness review" is not utterly empty, and the Court has continued to assert that due process requires every statute to pursue a legitimate governmental purpose through reasonable means.
Due process since the New Deal era has followed distinct lines of argument, based on procedure, the incorporation of liberties into the Bill of Rights, limits on laws that are vague, limits on laws that burden excluded classes, and the protection of ordered liberty.
"Procedural due process" is the twentieth-century term for the traditional concern that no one lose life, liberty, or property without proper adjudication. It appears to have first been used in 1934 by Justice Roberts, dissenting in Snyder v. Massachusetts, 291 US 97: "Procedural due process has to do with the manner of the trial; dictates that in the conduct of judicial inquiry certain fundamental rules of fairness be observed; forbids the disregard of those rules, and is not satisfied, though the result is just, if the hearing was unfair." This element of due process most importantly requires that any permanent loss of property be preceded by a fair proceeding by a court with jurisdiction over the matter, and that the person defending there have adequate notice and a fair opportunity to defend the case before an impartial judge (see Rees v. City of Watertown, 86 US 107 [1873]; Hurtado v. California, 110 US 516 [1884]). The extent of the process required has, since Mathews v. Eldridge, 424 US 319 (1976), varied according to the interest at risk: if the interest to the individual is more important, and additional procedures would likely diminish factual mistakes and are not too expensive, it is more likely the procedures will be required.
The most critical question of procedural due process is what interests it protects. The nineteenth-and early twentieth-century view was to distinguish protected rights from unprotected interests. Thus, when Justice Holmes said, "there is no right to be a policeman," it followed that denying certain liberties to a policeman on the job did not give rise to due process requirements (McAuliffe v. Mayor of NewBedford, 155 Mass. 216 [1892]). In the last third of the twentieth century, this distinction dissolved, and the Court recognized due process guarantees against the loss of government-created entitlements (Goldberg v. Kelly, 397 US 254 [1970]), finding in Board of Regents v. Roth, 408 US 564 (1972) that due process rights apply to job termination if a reasonable expectation of continued government employment gives rise to a property interest. Paul v. Davis, 424 US 693 (1976) recognized similar protections for a liberty interest. (See also Morrissey v. Brewer, 408 US 471 [1972], in reference to prisoner parole hearings; and Goss v. Lopez, 419 US 565 [1975], concerning public education.)
The closing decades of the twentieth century saw some retreat from broad applications of procedural due process. Acting often on arguments to reassert the "original intent" of the framers, the Court also limited the requirements of notice, as when a prior conviction serves as notice for all postconviction harms by state officials (Parratt v. Taylor, 451 US 527 [1981]), or the definition of liberty is narrowed to exclude the civil commitment to prison (Kansas v. Hendricks, 521 US 346 [1997]).
Although review of economic legislation has diminished, it has yet to die. The potential for the Court to strike down state economic regulations persists, although it is unclear how willing the Court is to act on such grounds alone, and much of the scrutiny of state regulations once done as a matter of due process was done in the 1980s and 1990s as review of limitations on property rights under the takings clause (see Eastern Enterprises v. Apfel, 524 US 498 [1998]).
The Court has continued to apply due process to protect individual liberties, interpreting it to incorporate the restrictions of the Bill of Rights. In Twining v. New Jersey, 211 US 78 (1908), the Court suggested the possibility, manifested in Justice Cardozo's opinion in Palko v. Connecticut, 302 US 319 (1937), that some limits on the central government in the first eight amendments are "incorporated" into the due process clause of the Fourteenth Amendment and so binding on the states. Since then, the Court has incorporated into due process the First Amendment's guarantees of speech, religion, and association (West Virginia v. Barnette, 319 US 624 [1943]; Everson v. Board of Education, 330 US 1 [1947]; Edwards v. South Carolina, 372 US 229 [1963]); the Fourth Amendment's warrants and search clauses (Mapp v. Ohio, 367 US 643 [1961]; Ker v. California, 374 US 23 [1963]); the Fifth Amendment's bars of double jeopardy, self-incrimination, and takings of property without just compensation (Palko [1937]; Malloy v. Hogan, 378 US 1 [1964]; Penn Central v. New York City, 438 US 104 [1978]); the Sixth Amend-ment's guarantees of a speedy and public jury trial, with notice of the charge, and of the right to confront witnesses, who must appear, and the right to counsel (Klopfer v. North Carolina, 386 US 213 [1967]; In re Oliver, 333 US 257 [1948]; Duncan v. Louisiana, 391 US 145 [1968]; Cole v. Arkansas, 333 US 196 [1948]; Pointer v. Texas, 380 US 400 [1965]; Washington v. Texas, 388 US 56 [1967]; Gideon v. Wainwright, 372 US 335 [1963]); and the Eighth Amendment's bars on excessive bail and on cruel and unusual punishment (Schilb v. Kuebel, 404 US 357 [1971]; Robinson v. California, 370 US 660 [1962]).
Vagueness has been a due-process standard for criminal law since Stromberg v. California, 283 US 359 (1931), in which Chief Justice Hughes wrote that a statute so vague as to allow the punishment of speech protected under the First Amendment would violate the Fourteenth Amendment. This idea was expanded in 1948 into a general standard of definiteness, which requires that crimes be defined with appropriate definiteness so that anyone with common intelligence can determine what conduct is punishable (Winters v. New York, 333 US 507). (See also Papachristou v. City of Jacksonville, 405 US 156 [1972], invalidating a vagrancy law, and Chicago v. Morales, 527 US 41 [1999], invalidating a gang-member loitering law.)
Some federal due-process cases examine laws more strictly than merely assuring they are reasonable. If a law burdens a fundamental interest in liberty or creates a burden that falls particularly on a discreet and insular minority group that has been denied access to the legislative process, the degree of judicial scrutiny rises, and such laws will only be upheld if they pursue compelling state interests by the most narrowly tailored means possible. This idea, announced in a footnote in Justice Stone's opinion in United States v. Carolene Products, 304 US 144 (1938), has been the basis of the development of civil rights doctrines of equal protection. It has also been the basis for several cases that suggest the continuing vitality of general, substantive due process review, as one justification both for decisions protecting a right to privacy and guaranteeing rights to medical procedures (see Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 [1992]; Washington v. Glucksberg, 521 US 702 [1997]).
One important application of this approach has been to read the Fifth Amendment's due-process limits on Congress as including an assurance of equal protection. Signaling such a change in the Japanese internment cases, the Court announced in Hirabayashi v. United States, 320 US 81 (1943), that the Fifth Amendment may restrain "such discriminatory legislation by Congress as amounts to a denial of due process" and in Korematsu v. United States, 323 US 214 (1944), that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect" and to be reviewed with "the most rigid scrutiny." Thus in Bolling v. Sharpe, 347 US 497 (1954), the Court struck down District of Columbia school-segregation laws under the Fifth Amendment.
Lastly, the states remain important sources for the expansion of due process laws. State courts have the final authority to determine the meaning of state constitutions, and the due process clauses of state law have often been interpreted to encompass broader protections of individual rights than have been found in the Fifth and Fourteenth Amendments.
Bibliography
Aynes, Richard L. "On Misreading John Bingham and the Fourteenth Amendment." Yale Law Journal 103 (October 1993): 57–104.
Ely, James W., Jr. "The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process." Constitutional Commentary 16 (Summer 1999): 315–345.
Mott, Rodney. Due Process of Law: A Historical and Analytical Treatise. Indianapolis, Ind.: Bobbs-Merrill, 1926.
Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Cambridge, Mass.: Harvard University Press, 1988.
Perry, Michael J. We the People: The Fourteenth Amendment and the Supreme Court. New York: Oxford University Press, 1999.
Schwartz, Bernard, ed. The Fourteenth Amendment: Centennial Volume. New York: New York University Press, 1970.
Ten Broek, Jacobus. Equal under Law. New York: Collier Books,1965.
—Steve Sheppard
