Due process


Due process of law is a legal concept that ensures the government will respect all of a person's legal rights instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. Due process has also been interpreted as placing limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice, and liberty. The legal systems of many nations embrace some variant of this, such as the concept of fundamental justice in Canada.

International due process

Lots of nations recognize some form of due process under customary international law. Although the specifics are not clear, there has been consensus that a nation must guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they were bound to grant no more rights to aliens than they did 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 has all but disappeared.

Due process in the United States

The Fifth Amendment contains a guarantee of basic due process applicable only to actions of the federal government: "No person shall be... deprived of life, liberty, or property, without due process of law...." The Fourteenth Amendment contains the same phrase, but expressly applied to the States. The Supreme Court has interpreted the two clauses identically, so under the federal Constitution, there is no substantial difference in protection from federal or State action. However, State constitutions also have their own guarantees of due process that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to individuals than under federal law.

The Due Process Clause of the U.S. Constitution is descended from a similar clause of the Magna Carta in which the King of England agreed (in the year 1215 A.D.) that "No Freeman shall be taken, or imprisoned, or be disseised 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." Thus, the core historical meaning of the Due Process Clause is that the government cannot deprive anyone if the Law of the Land forbids it. In other words, neither the King nor an American President may take away your life, liberty, or property if the law denies him that power.

Due Process under the federal Constitution has additionally been interpreted as a restraint on the ways that legislatures may alter the law, although some judges over the years have objected to stretching the Due Process Clause beyond what was intended by Magna Carta. As a limitation on Congress, the Due Process Clause has been interpreted by the majority of the Supreme Court to have both procedural and substantive components, meaning that it imposes restrictions on legal procedures-the ways in which laws may operate-and also on legal substance-what laws may attempt to do or prohibit. 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 very controversial, because it gives the U.S. Supreme Court considerable power to strike down state and federal statutes in order to legalize activities that a majority of the judges don't think should have been criminalized in the first place.

Procedural due process

Procedural due process is essentially based on the concept of procedural fairness. As a bare minimum, it includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings. In criminal cases, fair procedures help to ensure that an accused person will not be subjected to cruel and unusual punishment, which occurs when an innocent person is wrongly convicted.

Criminal prosecutions and civil cases are governed by explicit guarantees of rights under the Bill of Rights and as incorporated under the Fourteenth Amendment to the States (see below). However, when the Constitution has not laid out the specific procedures that must be followed in other government proceedings, due process provides a minumum floor of protection to the individual that statutes, regulations, and enforcement actions must at least meet (but can exceed), in order to ensure that no one is deprived of life, liberty, or property arbitrarily and without opportunity to affect the judgment or result. This minimum 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 punished, which would be tantamount to cruel and unusual punishment.

Personal jurisdiction

Procedural due process places limits on the assertion of personal jurisdiction over a defendant to a lawsuit, limiting the locations where that defendant may be hauled into court. This is of particular relevance in cases involving business transactions conducted across state lines, where the defendant may not have set foot in the other state, but still conducted affairs with the other state's residents through correspondence, the shipment of goods, or indirect agents. This limitation also applies to jurisdiction over foreign defendants in U.S. courts.

In a somewhat complicated line of cases, the Supreme Court has required that the defendant had established minimum contacts with the jurisdiction wishing to act as a forum for the litigation, such that the defendant should not be surprised that he was subject to suit in that location. The defendant must have purposefully availed himself of the privilege of conducting business within that jurisdiction-intentionally directing his activities at that state and its residents. Simply put, the defendant's actions determine where he can be sued, rather than the actions or movement of the plaintiff. Courts are still working out how this applies to lawsuits regarding internet activity and business, though they appear to be in agreement that the "passive" posting of a website is not enough to establish widespread jurisdiction wherever someone wants to sue the web author over the contents.

A court in one state must have a means of notifying the resident of another (or of a foreign country), to comply with the notice requirement of due process. This is typically done through "long-arm statutes" that provide for service of process upon the defendant in another jurisdiction through agents located or sent there. Because out-of-state defendants can't always be located easily, some state or local laws may allow for service by publication. An example of this would be printing a notice of the lawsuit in a newspaper published where the defendant is believed to reside. Because the failure of a defendant to appear in court results in a default judgment against him, such measures must be sufficiently calculated to give actual notice to the defendant to satisfy 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. Although incorporation started with Gitlow v. New York ( 1925), a First Amendment case, it really began in earnest 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 whose abridgement would deny a "fundamental right." It was the latter course that the Warren Court of the 1960s took, although, in the end, almost all of the Bill of Rights was incorporated against the states.

Substantive due process


Though on its face, the idea that due process is not only procedural but substantive seems paradoxical, the Court has endorsed that view. Note that the boundary between substance and procedure is far from exact. The Supreme Court has held for much of its history that due process must include limits not only on how people are put on trial (procedures), but also limits on what kind of control majorities can have over minorities and individuals (substance). The court has viewed the due process clause as embracing those fundamental rights that are "implicit in ordered liberty." Just what these rights are is not always clear. Substantive due process has protected such rights as marriage and raising children, and the extension of much of the Bill of Rights over the States. However, what are seen as past abuses and present excesses of this doctrine continue to spur debate over its use.

Development and use as a doctrine

The idea of substantive due process was developed in the nineteenth century, rather than being part of the legacy of Magna Carta. James Madison explained as follows, when he proposed the Bill of Rights to Congress in 1789: "Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed." Magna Carta forbade the King from disobeying Parliament, and the framers of the Bill of Rights (including Madison) understood that Magna Carta did not forbid Parliament from doing anything.

Substantive due process was first applied by Supreme Court in a subsection of Dred Scott v. Sandford (1856) . Dred Scott was a slave who claimed that passing into territory where slavery was prohibited destroyed his owner's property rights over him. The court ruled in three parts. First, it argued that Dred Scott was not a citizen of the United States therefore he had no right to liberity under the Constitution of 1856-this argument, now harshly repudiated, is not based on the Due Process clause but did establish that the Court considered Dred Scott to be property. Second, the court argued that no Federal law could exist which per se appropriated property without advance notice and opportunity for judicial review-this was a Due Process argument. Thus, the decision established that the absence of a procedure violates Due Process just as much an unfair procedure. After the Fourteenth Amendment applied due process restrictions to states, the Supreme Court used this same doctrine to protect a liberty of contract by routinely striking down (such as in Lochner v. New York) those economic and labor regulations which restricted particular economic activities per se without opportunity for judicial review.

It is also charged that Substantive Due Process developed and became common currency as a consequence of the Court's desire to accomodate the railroads and trusts of the late 19th Century; see also, The Supreme Court and it's Great Justices , Sidney H. Asch, Ch. 4, pp.66-70.

As judges became more deferential to legislative judgment in the area of commerce, substantive due process shifted away from upholding laissez-faire economics to recognizing individual rights considered to be fundamental liberty interests. This has included the incorporation of most of the Bill of Rights under the Fourteenth Amendment to apply to the laws and actions of states, as well as the recognition of rights concerning family and privacy not elsewhere in the text of the Constitution. See, for example, Griswold v. Connecticut, where privacy was said to be found in what the Court called the "penumbras" of certain amendments, such as the First, Fourth, and Ninth. Substantive due process has notably been invoked to invalidate laws in such areas as abortion in Roe v. Wade, and most recently in Lawrence v. Texas regarding the rights of gays and lesbians to sexual intimacy.

Criticisms of substantive due process

The same criticisms of the doctrine continue as in the past: that justices are reading their personal views into the Constitution instead of interpreting it. However, the disagreements now are usually much more concerned with what, based on tradition and history, should be embraced under such protections of fundamental liberty rather than whether there are such unspoken guarantees in the Constitution in the first place.

Originalists - including two current Supreme Court Justices, Thomas and Scalia - stringently reject Substantive Due Process, and believe that due process should only limit legislators with respect to actual due process . Scalia, in particular, has been caustically dismissive of the legitimacy of the doctrine, calling it a "judicial usurpation"). Both Scalia and Thomas, though have occaisionally joined Court opinions that do not challenge the doctrine, and have in their dissents taken more to arguing over how substantive due process should be employed based on Court precedent. In other words, the main debate in recent decades within the Court over substantive due process has been more about where to apply it, and less about whether it should be applied at all.

Types of scrutiny

There are two forms of scrutiny to which legislation is subjected under substantive due process review. When the governmental action is infringing upon a fundamental right, strict scrutiny (the highest level of review) is used. In order to pass muster under strict scrutiny review, the act/legislation in question must be closely related to a compelling government interest, and it must be necessary to achieve this interest. Strict scrutiny is almost always fatal for legislation. When the governmental action is infringing upon a non-fundamental right, the rational basis test is used. In order to pass muster under rational basis review, the legislation/act in question must be reasonably related to a legitimate governmental interest. Statutes examined under rational basis scruitiny almost always upheld.

Explicit procedural guarantees in the U.S. Constitution

  • Article One, Section 9:
    • the right to writs of habeas corpus, except during rebellion or invasion
    • the prohibition of bills of attainder (conviction and sentencing for a crime, typically treason, by a legislative act)
    • the prohibition of ex post facto laws (punishing acts not crimes at the time they were committed)
  • Article Three, Section 2:
    • the right to a jury trial regardless of whether the crime occurred in a state or in another location
  • The 5th Amendment:
    • the right to a grand jury indictment in federal court, in capital and other "infamous" cases, except for members of the armed forces
    • the prohibition of double jeopardy (prosecuting someone again for a crime of which they have already been acquitted)
    • the right to not commit self-incrimination
    • the right to due process of law for life, liberty, and property (as enforced against the federal government)
  • The 6th Amendment:
    • in all criminal prosecutions:
      • the right to a speedy and public trial in the state where the crime occurred
      • the right to an impartial jury of one's peers
      • the right to know the charges and evidence
      • the right to confront and cross-examine opposing witnesses
      • the right to compel witnesses to appear
      • the right to counsel
  • The 7th Amendment:
    • in civil trials in federal courts:
      • the right to a jury in civil trials
      • the guarantee that issues determined by a jury will not be redetermined by other courts in a manner contrary to the common law
  • The 14th Amendment, Section 1:
    • the right to due process of law regarding life, liberty, and property (as enforced against State governments)

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