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What is Due Process of Law?

Updated on January 2, 2017

Due Process Of Law is a central concept of Anglo-American constitutional history. It is generally traced to the Latin phrase per legem terrae (by the law of the land) in the Magna Carta of 1215. In chapter 39 of that document King John promised: "No free man shall be arrested, or imprisoned, or disseized, or outlawed, or exiled, or in any way molested; nor will we proceed against him, unless by the lawful judgment of his peers or by the law of the land." Magna Carta was periodically confirmed by succeeding sovereigns, and in a statute of 1354, reign of Edward III, the phrase "due process of law" first appears: "That no man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law."

While none of these documents specified what was meant by law of the land, or due process, some indication is supplied by the Petition of Right of 1628, which prayed that "freemen be imprisoned or detained only by the law of the land, or by due process of law, and not by the King's special command without any charge." It was the English understanding of due process that Daniel Webster undertook to summarize in 1819 in his argument in the Dartmouth College case , where he spoke of due process as "the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial," so that "every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society".

The Fifth Amendment

Due process of law was written into the U.S. Constitution when the Bill of Rights was adopted in 1791. The 5th Amendment, among other guarantees, provided that no person should be "deprived of life, liberty, or property, without due process of law." The U.S. Supreme Court held in Barron v. Baltimore (1833) that this clause was a limitation only on the federal government, not the states.

In practice, the due process requirement of the 5th Amendment has had comparatively little importance. In federal criminal trials it is pushed into the background by the other, more specific guarantees of the Bill of Rights, such as the 4th Amendment protection against unreasonable searches and seizures, the 5th Amendment guarantee against self-incrimination, and the 6th Amendment right to the assistance of counsel. As a protection for property rights, due process is partially overshadowed by another 5th Amendment provision, namely, that private property shall not be taken for public use without just compensation. Nevertheless, due process has been useful in imposing general standards of fairness on government administrative proceedings, requiring notice, fair hearing, and opportunity for judicial review where personal or property rights are affected by administative action. Due process also applies to military justice, though here again it is a general obligation, backstop-ping the more specific provisions of the Bill of Rights and the Uniform Code of Military Justice.

The 14th Amendment

It was not until the due process obligation was extended to the states by the 14th Amendment that its potentialities were realized. Actually, the drafters of the amendment had no great expectations for the due process clause, because it had been of little consequence in the 5th Amendment. Their attention was concentrated rather on the preceding clause, which forbids the abridgement of the privileges and immunities of citizens of the United States. As it turned out, however, in the very first ruling by the Supreme Court on the 14th Amendment, the Slaughterhouse cases (1873), the privileges and immunities clause was interpreted so narrowly as to render it practically meaningless. On the other hand, the 14th Amendment due process clause has come to be the source of more constitutional law than any other language in the Constitution.

Substantive Due Process

The initial expectation that the due process clause would provide procedural protection for the liberty and property rights of the newly freed slaves was almost completely confounded. Instead, due process achieved very quickly a remarkable success in an entirely different role, the protection of the property rights of businesses and corporations against regulation by state legislatures.

To be sure, the Supreme Court did for a time, as in the Slaughterhouse cases and Munn v. Illinois (1877), reject efforts to project it into judging the merits of regulatory legislation. In the Munn case, the court refused to interfere with legislative fixing of the rates charged by grain elevators, with Chief Justice Morrison R. Waite remarking that for the correction of legislative abuses "the people must resort to the polls, not to the courts." But 10 years later, while upholding a state prohibition act in Mitgler v. Kansas (1887), the court asserted that there were limits on state exercise of the police power, and that the due process clause required the court to "look at the substance of things, whenever they enter upon an inquiry whether the legislature has transcended the limits of its authority." Thus substantive due process was born, though it was not until Allgeyer v. Louisiana (1897) that the court actually set aside a state law on this ground.

During the half century from 1887 to 1937, substantive due process was the Supreme Court's most distinctive contribution to American constitutional law. The liberty protected by the due process clause was interpreted to include freedom of contract, and laissez-faire became a constitutional dogma by which the Supreme Court presumed to judge the wisdom of dozens of state regulatory statutes. In Lochner v. New fork (1905) it invalidated a 10-hour law for bakers. In Adkins v. Children's Hospital (1923) it held minimum wages for women unconstitutional. In Burns Baking Co. v. Bryan (1924) it struck down a law regulating weight of loaves of bread.

It was this assumption of judicial veto power over state legislation that was one of the principal factors in public rejection of the court under the New Deal. The first judicial signal of reversal of doctrine came in Nebbia v. New York (1934), when the court upheld the price-fixing of milk. Approval of both state and federal minimum wage statutes followed in 1937 and 1941. In fact, the court so completely abandoned substantive due process in the late 1940s and the 1950s that it withdrew entirely from reviewing state economic legislation, even on the broad grounds of reasonableness. Thus the court came full circle back to the Munn position that the appeal against legislative errors in the field of economic regulation is to the polls, not the courts.

Due Process and State Judicial Proceedings

Surprisingly, the Supreme Court proved much more reluctant to assume responsibility for assuring procedural due process in state court actions, with which it was charged by the 14th Amendment, than it had been to undertake substantive due process review of state regulatory legislation, where its authority was much more dubious.

The court's initial assumption was that the 14th Amendment gave it only the right to enforce the basic and traditional requirements of jurisdiction, notice, and hearing in state judicial proceedings. For three quarters of a century the court firmly rejected the contention that the specific protections of the 4th through the 8th amendments, applicable to trial procedures in federal courts, had been made binding on state courts by the 14th Amendment. In a series of noteworthy decisions—Hurtado v. California (1884), Maxwell v. Dow (1900), Twining v. New Jersey (1908)—the court held that the states were not obliged to enforce the grand jury indictment, jury trial, or self-mcrimination requirements of the Bill of Rights. The court's view was that it would not be wise to bind the states to any fixed set of procedures in criminal cases; they should be free to adapt their legal institutions to new situations.

In the Maxwell case, Justice John M. Harlan, dissenting, bitterly contrasted the court's differing practice with respect to substantive and procedural due process and charged that for the court "the protection of private property is of more consequence than the protection of the life and liberty of the citizen." He contended that the drafters of the due process clause had intended to "incorporate" and impose on the states the same restrictions that the 4th through the 8th amendments imposed on the federal courts. But his colleagues rejected this argument and asserted that the test of state procedures was whether they were in accord with the fundamental principles of liberty and justice that inhere in the very idea of free government. Justice Benjamin N. Cardozo gave the "ordered liberty" view its classic formulation in Palko v. Connecticut (1937).

The "incorporationists", however, did not give up. In Adamson v. California (1947), led by Justice Hugo L. Black, they lacked only one vote to overturn the "ordered liberty" standard. A significant breakthrough came in Wolf v. Colorado (1949), where the Court unanimously agreed that the states were forbidden by the 14th Amendment to conduct unreasonable searches and seizures. However, a majority of the court declined to apply to the states the "exclusionary rule" utilized in federal courts to enforce the 4th Amendment, a rule that provides that evidence secured illegally is inadmissible in court.

During the 1950s the court found it increasingly difficult to rationalize this dual system of constitutional standards for criminal justice under which state courts would admit illegally secured evidence, fail to provide counsel for defendants unable to hire them, or compel self-incrimination. Finally, in Mapp v. Ohio (1961), the court capitulated, overruled the Wolf decision, and held evidence secured by illegal searches and seizures inadmissible. In prompt succession most of the other provisions of the 4th through the 8th amendments were also brought into effect in the states. The most noteworthy rulings in this series were Gideon v. Wainwright (1963), which required state courts to provide counsel for defendants in criminal cases, and Duncan v. Louisiana (1968), which overruled Maxwell v. Dow and held that the 6th Amendment required the availability of jury trial in the states except for petty crimes.

The due process clause has also been the foundation for the Supreme Court's concern with police investigative methods in the pretrial period. In Escobedo v. Illinois (1964) the court held that a suspect taken into police custody for questioning about a crime must be given an opportunity to consult a lawyer. Two years later, Miranda v. Arizona (1966) held that incommunicado police detention is inherently coercive and that confessions obtained without informing the suspects of their right to remain silent and to see counsel cannot be used in court.

The First Amendment

Though the Supreme Court quickly read into the due process clause a protection for liberty of contracts that is nowhere mentioned in the Constitution, it did not discover until 1925 that the 1st Amendment protections of free speech and press were embodied in the "liberty" guaranteed by the 14th Amendment and so protected against state infringement. As late as 1922, the court had held that the Constitution did not impose on the states any duty to recognize the right of free speech. But in Gitlow v. New fork (1925) the court abruptly announced: "We may and do assume that freedom of speech and of the press . . . are among the fundamental rights and 'liberties' protected by the due process clause of the 14th Amendment from impairment by the States."

In 1940 the court, in Cantwell v. Connecticut, for the first time brought the freedom of religion guarantee of the 1st Amendment into effect upon the states. Justice Owen J. Roberts explained that the fundamental concept of "liberty" embodied in the 14th Amendment embraces all the liberties guaranteed by the 1st Amendment. Logically, the court in Everson v. Board of Education (1947) made the establishment of religion provision applicable to the states.


It is thus the due process clause that has given the Supreme Court its major responsibility for enforcing the basic freedoms of the American democratic system. Particularly since the 1940s the court, in some of its most significant decisions, has repeatedly construed state restrictions affecting the liberty to speak, to print, to assemble, to organize, to demonstrate, to worship. It is the due process clause that has given the court many of its most difficult problems in reconciling the competing claims of •eedom and order.

In short, the due process clause has had a curious history. It has had two major uses, neither of which may have been foreseen by its framers. First, it was given a novel substantive interpretation that authorized the Supreme Court to act like a superlegislature in reviewing state economic regulation. When the New Deal brought this phase to an end, due process reappeared in an even greater role as the powerful instrument by which the libertarian language of the Bill of Rights was made effective throughout the nation.


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    • LawrivaL profile image


      8 years ago from Los Angeles

      Hello! Would it be true that if the Police pulled someone over in an automobile on the public highway and they discover that the driver had no drivers license and had the car towed, are they in violation of due process?

    • profile image


      8 years ago

      Yes, I do more than agreeing with Crescente and Scla that this article is really an excellent, detailed, and a very substantial one... a masterpiece article, I should say. I hereby give you my great appreciation and heartfelt thanks. Please keep up your good and very precious work.

    • scla profile image


      10 years ago from Southern California

      Thanks for the detailed explanation of the due process of law. Due process of law appears to have risen from obscurity to become a powerful force used to enforce important freedoms.

    • profile image

      Crescente Villahermosa 

      10 years ago

      Excellent article. I would suggest, however, a treatment of "due process" as it applies not only to courts of justice as they deal on questions and implementation of laws, but just as important, also to government and even private offices as these implement their own internal policies, rules and regulations. In the Philippines, whose 1935 Commonwealth Constitution was closely patterned after that of the US Constitution and whose present Constitution also reflect the same underlying principles, the due process requirement in the conduct of operations of government and private entities within the jurisdiction of that country is stare decisis backed up by voluminous decided cases from the lower courts up to the Supreme Court. Thus an employee of a private company can challenge the validity of his termination from employment if the decision for such lacked the essential requirements of due notice, the opportunity to present his side and the option to exercise his right to be assisted by legal counsel. Similarly, a student in a private school could not just be expelled without due process. As a decision on such a case handed down by the Philippine Supreme Court stated (quoting freely from memory): "Due process is to be observed not only in tribunals and courts but also in the administration of government and private offices." And in many cases, the words "fair hearing," and "transparency" are also echoed.


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