Due Process of Law in the United States
Legal concept representing the normal and regular administration of law. Due process is founded on the principle that government may not act arbitrarily or capriciously. It means that government may only act in ways established by law and under such limitations as the law imposes to protect individual rights. There are constitutional provisions at both the federal and state levels designed to ensure that laws will be reasonable both in substance and in means of implementation. Due process language is contained in two clauses of the U.S. Constitution. The Fifth Amendment prohibits deprivation of “life, liberty, or property, without due process of law” and sets a limit on arbitrary and unreasonable actions by the federal government. The Fourteenth Amendment contains parallel language aimed at the states. Due process requires that actions of government occur through ordered and regular processes. It subjects those processes to constitutional and statutory limits in the protection of individual rights. There are two kinds of due process. The first is procedural due process, which focuses on the methods or procedures by which governmental policies are executed. It guarantees fairness in the process by which government imposes regulations or sanctions. Procedural due process requires that a person be formally notified of any proceeding in which he or she is a party, and he or she be afforded an opportunity to an impartial hearing. Additional procedural rights have been enumerated in the Bill of Rights. Through the process of incorporation, most Bill of Rights protections have been applied as limitations on the states through the due process clause of the Fourteenth Amendment. Substantive due process represents the second kind of due process. It involves the reasonableness of policy content. Policies may deny substantive due process when they do not relate rationally to legitimate legislative objectives or when they are impermissibly vague. The distinction between procedural and substantive due process directly involves the nature of judicial review. When the U.S. Supreme Court examines a policy for procedural fairness, it makes only a limited review. It does not engage in consideration of legislative motive or the wisdom of the enactment. Appraisal of the reasonableness of substance, however, allows the Court to act as an extension of the legislative process. Since most state enactments impinge on property interests, the due process clause has provided the Court with a comprehensive method by which to judge state regulatory measures.
See Also
Incorporation (Judicial Function) Judicial Review (Judicial Function) Procedural Due Process (Judicial Function) Substantive Due Process (Judicial Function).
Analysis and Relevance
Due process of law pursues fairness by demanding an orderly course of legal proceedings. A critical element is the right of a party to be heard by an impartial tribunal with jurisdiction over the dispute. The two due process clauses in the U.S. Constitution have frequently been used to challenge governmental actions as lacking either procedural or substantive fairness. The due process clause of the Fifth Amendment restricts the federal government. While utilized to some degree to contest federal economic regulation, those regulations were infrequent early in our history. As federal power was used more extensively, constitutional challenges tended to focus on the particular federal legislative power source, such as the interstate commerce power. Claims of due process violations backed up many of these challenges, but were not featured elements. That has not been the pattern with the due process clause of the Fourteenth Amendment. This clause has provided the mechanism by which Bill of Rights guarantees have been applied to the states. The Fifth Amendment counterpart has not had to function as a conduit since the enumerated Bill of Rights protections apply directly to the federal level. Nationalization of the Bill of Rights through the due process clause of the Fourteenth Amendment increased in impact through the 1960s. The importance of the Fourteenth Amendment due process clause as the focus of state economic policy has also been extensive.
Prior to the Civil War, the vested rights issue, which dominated many of the early contract clause cases, began to enter the U.S. Supreme Court’s handling of various legislative enactments through the concept of due process. The argument was that the due process clauses could be used to protect property and economic interests. Initially, the Court rejected these contentions and deferred to state legislative enactments as in the Slaughterhouse Casts (16 Wallace 36: 1873). In such cases, the Court opted for an entirely procedural view of due process. In subsequent cases like Munn v. Illinois (94 U.S. 113: 1877), the Court also emphasized the sovereign authority of state police power, which entitled states to legislate for the health, safety, morals, and the general well-being of its citizenry. Strong substantive due process dissents were entered throughout this period, and eventually that position prevailed. The substantive due process majority sought to strike down state legislation it considered unreasonable. The argument was that substantively unreasonable regulation was as much a deprivation of due process as actions that used arbitrary methods. Under this approach, the Court addressed itself to the wisdom of state policies. Elements of the laissez-faire economic view were drawn into due process cases in this manner. One such element was the doctrine of liberty of contract. The doctrine held that if two parties entered into a lawful agreement, the state had no authority to interfere. The liberty of contract argument was used to invalidate a number of state regulations on hours of work, as in Lochner v. New York (198 U.S. 45: 1905). The period of substantive due process subsided in the 1930s at the same time the Court became more deferential to the exercise of power at the federal level. Over time, the Court essentially abandoned economic due process. At its height, however, the clause permitted the Court to perform an almost legislative role. Since most state laws touched property or contract interests, the opportunities for active intervention by the courts was great. Since the 1940s, the Court has generally turned its due process inquiries to noneconomic issues. At times, the activist substantive focus of earlier courts can be seen in cases involving individual freedoms and equality.
Notes and References
- Definition of Due Process of Law from the American Law Dictionary, 1991, California
Due Process Of Law Definition
Law in its regular course of administration through courts of justice. 3 Story, Const. 264, 661; 18 How. (U. S.) 272; 13 N. Y. 378. It is the equivalent to law of the land, as used in Magna Charta. Co. Inst. 60; 18 How. (U. S.) 272; 11 Mich. 129. Whatever difficulty may be experienced in giving to these terms a definition which will embrace every permissible exercise of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning as applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights, 96 U. S. 733. Such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for individual rights as those maxims prescribe for the class of cases to yrhich the one in question belongs. Cooley, Const. Lim. § 356. Due process of law is not any course of procedure that may at any t
ime be established by the legislature (34 Ala. 216; 43 N. J. Law, 203), yet it is not a denial of due process of law for the legislature to make changes in the common law, or in modes of procedure (50 Miss. 468; 70 N. Y. 228; 160 U. S. 389). Due process of law embraces only that which is fundamental, and to it is necessary an orderly legal proceeding, whereof the party aflfeeted shall have notice, and an opportunity to appear and be heard. 169 U. S. 366; 96 U. S. 97.
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Legal Issue for Attorneys
Law in its regular course of administration through courts of justice. 3 Story, Const. 264, 661; 18 How. (U. S.) 272; 13 N. Y. 378. It is the equivalent to law of the land, as used in Magna Charta. Co. Inst. 60; 18 How. (U. S.) 272; 11 Mich. 129. Whatever difficulty may be experienced in giving to these terms a definition which will embrace every permissible exercise of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning as applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights, 96 U. S. 733. Such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for individual rights as those maxims prescribe for the class of cases to yrhich the one in question belongs. Cooley, Const. Lim. § 356. Due process of law is not any course of procedure that may at any time be established by the legislature (34 Ala. 216; 43 N. J. Law, 203), yet it is not a denial of due process of law for the legislature to make changes in the common law, or in modes of procedure (50 Miss. 468; 70 N. Y. 228; 160 U. S. 389). Due process of law embraces only that which is fundamental, and to it is necessary an orderly legal proceeding, whereof the party aflfeeted shall have notice, and an opportunity to appear and be heard. 169 U. S. 366; 96 U. S. 97.
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Notice
This definition of Due Process Of Law Is based on the The Cyclopedic Law Dictionary . This definition needs to be proofread..
Practical Information
Note: Some of this information was last updated in 1982
Provisions in the Fifth and Fourteenth Amendments to the Constitution that prohibit the federal government and states from depriving any person of life, liberty, or property without due process of law. The clauses have been interpreted by the courts as protecting the individual from arbitrary government activity and the unreasonable use of police power (in U.S. law).
What is Due Process Of Law?
For a meaning of it, read Due Process Of Law in the Legal Dictionary here. Browse and search more U.S. and international free legal definitions and legal terms related to Due Process Of Law.
Procedural Due Process of Criminal Law
United States Constitution
According to the Encyclopedia of the American Constitution, about its article titled PROCEDURAL DUE PROCESS OF LAW, CRIMINALThe Barons at Runnymede did better than they knew. When they induced King John in 1215 to announce in magna carta that no man should be imprisoned or dispossessed “except by the lawful judgment of his peers and by the law of the land, ” they laid the basis for
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Due Process of Law Explained
References
See Also
- Criminal Law
- Criminal Procedure
Resources
See Also
Bill of Rights in U.S. Constitution ; Constitution of the United States ; andvol. 9:Congress Debates the Fourteenth Amendment.
Criminal Procedure; Incorporation Doctrine;
Judicial Review; Labor Law; Right to Counsel.
Fourteenth Amendment.
Further Reading (Books)
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.
SteveSheppard
Further Reading (Articles)
Due Process: Laws May Vary but the Principles Are Universal, Dispute Resolution Journal; February 1, 2007
We Can Do Better: Anti-Homeless Ordinances as Violations of State Substantive Due Process Law, Vanderbilt Law Review; May 1, 2006; Liese, Andrew J.
Due Process of Law, Encyclopedia of the American Constitution; January 1, 2000
Procedural Due Process of Law, Criminal, Encyclopedia of the American Constitution; January 1, 2000
Procedural Due Process of Law, Civil (Update 1), Encyclopedia of the American Constitution; January 1, 2000;
Procedural Due Process of Law, Civil, Encyclopedia of the American Constitution; January 1, 2000
Due Process of Law: A Brief History.(Book Review), The Historian; January 1, 2004; Hoffer, Peter Charles
Procedural Due Process of Law, Criminal (Update), Encyclopedia of the American Constitution; January 1, 2000
Procedural Due Process of Law, Civil (Update 2), Encyclopedia of the American Constitution; January 1, 2000
Use of Drones Crushes? Due Process of Law, The Buffalo News (Buffalo, NY); October 29, 2012; Turner, Doug
Bad example for constitutional prerogative and due process of law., The New Nation (Dhaka, India); September 9, 2010
Bad example for constitutional prerogative and due process of law, The New Nation (Dhaka, India); September 9, 2010
Bunyon v. Burke County.(violation of due process of law and false imprisonment)(Brief Article), Corrections Caselaw Quarterly; February 1, 2004
PM: Chia will be subject to due process of law, New Straits Times; February 10, 2004
Excluding Coerced Witness Testimony to Protect a Criminal Defendant’s Right to Due Process of Law and Adequately Deter Police Misconduct, Fordham Urban Law Journal; May 1, 2011; Sheridan, Katherine
Deprivation of Life, Liberty or Liens without Due Process of Law, American Bankruptcy Institute Journal; November 1, 2008; Pinkas, Oscar N
Richards v. Dretke.(due process of law )(Brief Article), Corrections Caselaw Quarterly; May 1, 2005
Vance v. Barrett.(violation of due process of law)(Brief Article), Corrections Caselaw Quarterly; August 1, 2003
U.S. v. Cooper.(due process of law)(Brief Article), Corrections Caselaw Quarterly; November 1, 2004
ASSOCIATION ENFORCEMENT OF RULES FOLLOWS DUE PROCESS, STATE LAWS.(REAL ESTATE WEEKLY). The Virginian-Pilot (Norfolk, VA); June 8, 2002