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Due process


Due process

Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person. Typically, "Due process" means 1) Notice, generally written, but some courts have determined, in rare circumstances, other types of notice suffice. Notice should provide sufficient detail to fully inform the individual of the decision or activity that will have an effect on his/her rights or property or person. 2) right to grieve (that being the right to complain or to disagree with the governmental actor/entity that has decision making authority) and 3) the right to appeal if not satisfied with the outcome of the grievance procedure. Due process balances the power of law of the land and protects the individual person 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.[3] 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.


  • By jurisdiction 1
    • Magna Carta 1.1
    • English law and American law diverge 1.2
    • United States 1.3
      • California 1.3.1
      • NDAA controversy 1.3.2
    • Others 1.4
  • See also 2
  • Notes 3
  • Further reading 4
  • External links 5

By jurisdiction

Magna Carta

In clause 39 of the Magna Carta, issued in 1215, John, King of England promised: "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."[4] 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."[4] 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. However, in the thirteenth century these provisions may have been referring only to the rights of landowners, and not to ordinary peasantry or villagers.[5]

Shorter versions of Magna Carta were subsequently issued by British monarchs, and Clause 39 of Magna Carta was renumbered "29."[6] 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."[7]

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.."[8]

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.[9] 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.[10] 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.[9]

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.[11] 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."[12]

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."[13] 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.[14]

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."[15] 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:

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

The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. Due process deals with the administration of justice and thus the Due Process Clause acts as a safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law.[17] 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.


During World War II, Judge Louis E. Goodman dismissed the case against native Californian Masaaki Kuwabara and 25 other draft resisters from Tule Lake Segregation Center on due process grounds.[18] His decision for the defense was unique among the Japanese-American draft resistance cases, and foreshadowed the cases on the Japanese evacuation and California's anti-Japanese Alien Land Law yet to be tried before the Supreme Court:

Defendant was at all times with which we are concerned, in actual confinement pursuant to the President's Order. Whether such confinement is lawful or not, is beside the question. It does not follow that because the war power may allow the detention of defendant at Tulelake, the guarantees of the Bill of Rights and other Constitutional provisions are abrogated by the existence of war.... The defendant cannot be denied the protection of the guaranty of due process because of the war or danger to national security but only upon a valid declaration of martial law.... It is shocking to the conscience that an American citizen be confined on the ground of disloyalty, and then, while so under duress and restraint, be compelled to serve in the armed forces, or be prosecuted for not yielding to such compulsion. Certainly "fair and just" compulsory military training in a "free society" is wholly inconsistent with the instant proceeding. The issue raised by this motion is without precedent. It must be resolved in the light of the traditional and historic Anglo-American approach to the time-honored doctrine of "due process." It must not give way to overzealousness in an attempt to reach, via the criminal process, those whom we may regard as undesirable citizens.

In a paper he prepared for Law Day in 1961, entitled "Why Due Process", Judge Goodman wrote,

Inroads into, and shortcuts around our basic laws safeguarding individual rights, are too easily accepted—due to indifference, or callousness, or to too quick yielding to the clamor of those who seek to glorify an end, no matter what the means.
To proceed step by step in every process which affects life or liberty is, at times a tiresome and tedious procedure. The temptation to the short cuts I have mentioned is often strong. The hysteria and clamor of the moment are distracting. Temporary acclaim and momentary grandeur are very tempting fruits.

NDAA controversy

President Barack Obama signed the National Defense Authorization Act for Fiscal Year 2012 on December 31, 2011, which allows the United States Government to indefinitely detain Americans (Indefinite detention without trial: Section 1021) without the right to due process in the United States if there is reason to suspect a person is collaborating with "...associated forces that are engaged in hostilities against the United States or its coalition partners", the law now states that the right to due process is "forfeited" and suspected terrorists will be detained "without trial, until the end of the hostilities authorized by the AUMF."


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


  1. ^ a b Marshall, 69.
  2. ^ a b Marshall, 69–70.
  3. ^ "CRS Annotated Constitution: Due Process". Cornell University Law School. Retrieved June 30, 2014. 
  4. ^ a b The Text of Magna Carta (1215)
  5. ^ McKechnie, William Sharp (1905). Magna Carta: A Commentary on the Great Charter of King John. Glasgow: Robert MacLehose and Co., Ltd. pp. 136–37. : "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'...."
  6. ^ The Text of Magna Carta (1297)
  7. ^ 28 Edw. 3, c. 3
  8. ^ 46 (1608)Institutes of the Laws of England2
  9. ^ 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).
  10. ^ Dudley Julius Medly, 613 (1902)A Student's Manual of English Constitutional History
  11. ^ George Godfrey Cunningham, 54 (1835)Lives of Eminent and Illustrious Englishmen4
  12. ^ Hurtado v. California, 110 U.S. 516 (1884)
  13. ^ John V. Orth, Due Process of Law: A Brief History (Lawrence, KS: University Press of Kansas, 2003), 30–31.
  14. ^ Orth, 28–30.
  15. ^ Orth, 29.
  16. ^ 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.
  17. ^ Madison, P. A. (2 August 2010). "Historical Analysis of the Meaning of the 14th Amendment's First Section". The Federalist Blog. Retrieved 19 January 2013. 
  18. ^ United States v. Masaaki Kuwabara, 56 Federal Supplement 716 (Northern District, California), July 22, 1944.

Further reading

  • Goldberg v. Kelly
  • "U.S. Constitution: Fifth Amendment". Findlaw. 
  • Bernstein, David (2011). Rehabilitating Lochner: Defending Individual Rights against Progressive Reform. Chapter 1. Chicago: University of Chicago Press.  
  • Breyer, Stephen (2005). Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf.  
  • Hawkins, Brian (2006). "Lawrence v. Texas"The Glucksberg Renaissance: Substantive Due Process since . Michigan Law Review 105 (2): 409. 
  • Hyman, Andrew (2005). "'"The Little Word 'Due. Akron Law Review 38: 1. 
  • Madison, P. A. (2008). "A Dummies Guide to Understanding the Fourteenth Amendment". 
  • Nowak, John; Rotunda, Ronald (2000). Constitutional Law. West. 
  • Orth, John (2003). Due Process of Law: A Brief History. University Press of Kansas. 
  • Ring, Kevin (2004). Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice. Washington: Regnery.  
  • 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.

External links

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