What Is Due Process?
BY: Marc A. Scaringi, Esq.
Whether you’re watching a crime procedural show on television, or watching the news about a legal issue, you have likely heard the term “due process” used several times. However, what does “due process” mean, and why is it so crucial to our system of justice?
Historical Background of Due Process
The American justice system has its roots in British legal traditions. In Medieval England, many British monarchs ruled through force and will, often making arbitrary rulings justified only by their royal nature. For example, people could be arrested under the pretext of committing a crime, and coerced to confess to the crime through violent means.
This type of rule resulted in a significant conflict between the monarchy and the rebelling nobility. This led to the creation of the now-famous Magna Carta, an agreement between the monarchy and its kingdom, containing provisions that curtailed royal power and enshrining the rights of the nobility and the church.
Clause 39 of the Magna Carta read “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.”
This was the first attempt to make sure that everyone was answerable to the law, even the king. Centuries later, the concept of due process would be included in the U.S. Constitution.
Due Process of Law American Justice
After the American colonies successfully won their independence from the British Crown, they envisioned a government of limited powers while maximizing individual liberties. When the U.S. Constitution was drafted, the phrase “due process” was included in the Fifth Amendment of the original Bill of Rights.
The Fifth Amendment reads:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Less than a century later, the phrase “due process” appeared again in the Fourteenth Amendment, after the abolition of slavery.
Section 1 of the Fourteenth Amendment reads:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Today, these references to due process are the basis of the American judicial system. The Due Process Clause of the Fifth Amendment protects a person’s rights listed in the U.S. Constitution from oppressive acts of the U.S. federal government. The Due Process Clause of the Fourteenth Amendment has been interpreted to apply the Bill of Rights to the states, therefore protecting a person’s individual rights from oppressive acts of state governments.
What Are Due Process Rights?
Current American legal scholarship recognizes three kinds of due process: procedural due process and substantive due process.
What Is Procedural Due Process?
Procedural due process refers to the idea that the government and its agents are legally bound to respect rules and principles of justice before depriving someone of life, liberty, or property.
Procedural due process rights include:
- A fair trial
- Notice of legal action and the allegations against someone
- An opportunity to defend against such allegations
- The right to present evidence and call witnesses
- Full disclosure of opposing evidence
- The right to cross-examine opposing witnesses
- Judgments based only on the arguments and evidence presented
- Assistance of counsel
- A court-prepared record of the evidence
- A court-prepared written summary of the court’s findings and reasons for its judgment
What Is Substantive Due Process?
The concept of substantive due process refers to the fairness of specific laws when evaluated against the fundamental rights recognized under the law. A law that improperly violates these fundamental rights and the provisions of the Constitution can be struck down as unconstitutional.
Substantive due process is concerned with protecting the following rights:
- Rights listed in the first eight amendments of the Bill of Rights
- The right to engage in the political process (i.e., voting, free speech, free association, etc.)
- Rights of “discrete insular minorities”
Consult Scaringi Law for Legal Representation
At Scaringi Law, our team of skilled and dedicated attorneys has experience with cases involving civil rights and constitutional law. If you are concerned about your constitutional rights, our lawyers can guide you through challenging legal issues and advise you about the legal course of action available to you.
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