Due process

Due process of law is application by

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. That interpretation has proven controversial. Analogous to the concepts of natural justice and procedural justice used in various other jurisdictions, the interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically or mentally The term is not used in contemporary English law, but 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 either ancient or modern concepts of due process in England.^[2]

Due process developed from clause 39 of

By jurisdiction

Magna Carta

In clause 39 of

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

[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; and the law of Parliament is as much a law as any, nay, if there be any superiority this is a superior law.[9]

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 actions invalid as a violation of due process.^[16] In contrast, American legislators and executive branch officers possessed virtually no means by which to overrule judicial invalidation of statutes or actions as due process violations, with the sole exception of proposing a constitutional amendment, which are rarely successful.^[17] As a consequence, English law and American law diverged. Unlike their English counterparts, American judges became increasingly assertive about enforcing due process of law. In turn, the legislative and executive branches learned how to avoid such confrontations in the first place, by tailoring statutes and executive actions to the constitutional requirements of due process as elaborated upon by the judiciary.^[16]

In 1977, an English political science professor explained the present situation in England for the benefit of American lawyers:

An American constitutional lawyer might well be surprised by the elusiveness of references to the term 'due process of law' in the general body of English legal writing.... Today one finds no space devoted to due process in Halsbury's Laws of England, in Stephen's Commentaries, or Anson's Law and Custom of the Constitution. The phrase rates no entry in such works as Stroud's Judicial Dictionary or Wharton's Law Lexicon.^[1]

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

Notes

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.
  ISBN 978-0-307-26313-1
  .
• Breyer, Stephen (2005). Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf.
  ISBN 0-307-26313-4
  .
• JSTOR 3311426
  .
• Hawkins, Brian (2006). "The Glucksberg Renaissance: Substantive Due Process since Lawrence v. Texas" (PDF). Michigan Law Review. 105 (2): 409. Archived from the original (PDF) on June 15, 2007.
• Hyman, Andrew (2005). "The Little Word 'Due'". Akron Law Review. 38: 1. Archived from the original on February 5, 2013.
• S2CID 54830475
  .
• Madison, P. A. (2008). "A Dummies Guide to Understanding the Fourteenth Amendment". FederalistBlog.us.
• 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.
  ISBN 0-89526-053-0
  .
• 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.
• Yoshino, Kenji (January 15, 2006). "The Pressure to Cover: The New Civil Rights". The New York Times Magazine. Retrieved May 1, 2010. Discussing potential of liberty rights to overtake equality rights.
• Tugend, Alina (February 20, 2015). "Speaking Freely About Politics Can Cost You Your Job". The New York Times. "It’s important to remember that even though private employees don’t have constitutional or federal protection, they do have a due process right."

External links

• Cornell University Law School

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