Omar Bennett
Due process is a fundamental right guaranteed by the US Constitution. It protects people against arbitrary government decisions and ensures fairness in legal matters. The Fifth Amendment, added to the Constitution, states that no one shall be deprived of life, liberty or property without due process of law by the federal government. The Fourteenth Amendment, ratified in 1868, extends this obligation to the states. The Due Process Clause guarantees due process of law before the government may deprive someone of life, liberty, or property. This means that the government must follow the law and act with fundamental fairness. In criminal cases, due process protections overlap with procedural protections provided by the Eighth Amendment, which guarantees reliable procedures to protect innocent people from being executed.
| Characteristics | Values |
|---|---|
| Due process | A fundamental right guaranteed by the U.S. Constitution |
| Extends to everyone in America, including non-citizens | |
| Requires just and fair treatment of everyone, regardless of background or immigration status | |
| Protects people from arbitrary government decisions | |
| Ensures fairness in legal matters | |
| Provides fair procedures | |
| Protects against cruel and unusual punishment | |
| Protects substantive rights that are not listed in the Constitution | |
| Protects against unlawful detention by the government | |
| Procedural due process | Requires federal and state governments to abide by certain procedures to protect the essential interests of all persons within the U.S. |
| Requires notice, the opportunity to be heard, and a decision by a neutral decision-maker | |
| Requires the government to demonstrate articulated standards of conduct with sufficient justification | |
| Protects people from unjust or undue deprivation of interest | |
| Substantive due process | Related to rights that individuals have from government interference |
| Includes the "right to privacy" |
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What You'll Learn
Procedural due process
In civil contexts, courts employ a balancing test that weighs private interests, the government's public interest, and the risk of the government procedure erroneously depriving private interests. On the other hand, criminal procedures involve a narrower inquiry into whether the government's procedure is offensive to the concept of fundamental fairness.
The determination of what process is "due" depends on the specific situation and cannot be answered with a single, definitive list of procedures. The Supreme Court has interpreted the term "liberty" in the Due Process Clauses broadly, extending beyond mere freedom from bodily restraint to encompass the full range of conduct an individual is free to pursue.
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Substantive due process
The Fifth Amendment applies to federal action, while the Fourteenth Amendment extends this obligation to the states. The Due Process Clause does not prohibit the government from depriving someone of "substantive" rights such as life, liberty, or property; instead, it ensures that the government follows the law in doing so. The Supreme Court has interpreted the term "liberty" broadly, extending beyond mere freedom from bodily restraint to the full range of conduct an individual is free to pursue.
The concept of substantive due process has been controversial, with critics arguing that it allows the Supreme Court's unelected justices to impose their policy preferences on the nation, particularly in the early 20th century when the Court used it to strike down economic regulations that sought to better workers' conditions, citing "freedom of contract". This "economic substantive due process" has been reviled as judicial activism, with the Court later repudiating this approach in 1937.
The Supreme Court has since been more cautious with unenumerated rights, recognising that substantive due process protects fundamental rights deeply rooted in US history and tradition, viewed through the lens of evolving social norms.
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Habeas corpus
The writ of habeas corpus is a legal action that dates back to the Assize of Clarendon of 1166, during the reign of England's King Henry II. The foundations for habeas corpus are often thought to have originated in the Magna Carta of 1215, but they actually predate this. The 39th clause of the Magna Carta, signed by King John, provided that:
> "No man shall be arrested or imprisoned...except by the lawful judgment of his peers and by the law of the land."
The law of habeas corpus was adopted in the U.S., with James Madison arguing for its inclusion in the Bill of Rights in 1789. The first Judiciary Act of 1789 explicitly authorized federal courts to grant habeas relief to federal prisoners. The writ was expanded following the Civil War, allowing for habeas relief to state prisoners if they were held in violation of federal law. Post-World War II reforms further expanded the writ, and it became a tool for criminal defendants to uphold their civil rights against illegal state action.
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Fundamental fairness
The concept of "fundamental fairness" is integral to the interpretation and application of due process in law. Due process, as outlined in the Fifth Amendment to the US Constitution, asserts that no person shall be "deprived of life, liberty, or property without due process of law" by the federal government. This principle was extended to the states via the Fourteenth Amendment, underscoring the importance of legality and fair procedures at all levels of government.
In the legal realm, fundamental fairness translates into procedural protections that ensure just outcomes. This includes the right to a hearing before an impartial judicial officer, the right to legal representation, the right to present evidence and confront witnesses, and the right to receive written notice and findings in certain cases. These procedures safeguard individuals from arbitrary deprivation of their rights and ensure that the government operates within the bounds of the law.
The interpretation and application of due process have evolved over time, with the Supreme Court playing a significant role in shaping its contours. The Court has used the Due Process Clause to address issues such as economic regulations, reproductive rights, and the death penalty, sometimes drawing criticism for imposing its policy preferences on the nation. Nonetheless, the fundamental fairness inherent in due process remains a cornerstone of the legal system, protecting individuals from unjust infringement of their liberties.
In conclusion, fundamental fairness is the essence of due process, ensuring that legal procedures are just and equitable, and that any deprivation of life, liberty, or property is carried out with adherence to fair and impartial processes. It is a dynamic concept that continues to shape legal interpretations and uphold the rights of individuals in a just society.
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Civil and criminal procedures
The Due Process Clause, found in the Fifth and Fourteenth Amendments to the US Constitution, guarantees that no person shall be deprived of "life, liberty, or property" without due process of law. This applies to both civil and criminal proceedings.
Procedural due process requires government officials to follow fair procedures before depriving a person of life, liberty, or property. This includes providing notice, an opportunity to be heard, and a decision made by an unbiased decision-maker. In criminal cases, this may also include the right to present evidence, the right to cross-examine witnesses, and the right to counsel. In civil cases, a balancing test is used to evaluate the government's chosen procedure, considering the private interest affected, the risk of erroneous deprivation of that interest, and the government's interest.
Substantive due process involves certain fundamental rights deeply rooted in American history and tradition, such as the right to privacy, which has been inferred from various amendments. The Supreme Court has used the Due Process Clause to protect unenumerated rights, such as in the Lochner v. New York case, where they struck down economic regulations that violated workers' "freedom of contract." However, this decision was later repudiated, and the Court signalled it would tread carefully regarding unenumerated rights.
The Due Process Clause also prohibits vague laws and ensures equal protection under the law. For example, in Washington v. Glucksberg (1997), the Court held that a criminal law must provide clear notice of prohibited conduct to be valid. Additionally, in criminal cases, due process protections overlap with those provided by the Eighth Amendment, which guarantees reliable procedures to protect innocent people from cruel and unusual punishment, such as execution.
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Frequently asked questions
Due process refers to the concept found in the Fifth Amendment to the US Constitution, which states that no one shall be "deprived of life, liberty or property without due process of law" by the federal government. The Fourteenth Amendment, ratified in 1868, extends this obligation to the states.
Procedural due process refers to the constitutional requirement that when the government acts in a way that denies a person of life, liberty, or property interest, the person must be given notice, heard, and a decision made by a neutral decision-maker.
In criminal cases, procedural due process protections often overlap with the Eighth Amendment, which guarantees reliable procedures that protect innocent people from being executed. An example is the case Vitek v. Jones, 445 U.S. 480 (1980), which required certain procedural protections for state prisoners who may be transferred to a state mental hospital, including written notice, an adversary hearing, and written findings.
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