Due process

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Due process is an American legal principle that the government must respect all of the legal
rights that are owed to a person according to the law. Due process holds the government
subservient to the law of the land protecting individual persons from the state. When a
government harms a person without following the exact course of the law it constitutes a due
process violation which offends against the rule of law.

Due process has also been frequently interpreted as limiting laws and legal proceedings (see
substantive due process), so judges - instead of legislators - may define and guarantee
fundamental fairness, justice, and liberty. This interpretation has proven controversial, and is
analogous to the concepts of natural justice, and procedural justice used in various other
jurisdictions. This interpretation of due process is sometimes expressed as a command that the
government shall not be unfair to the people or shall not abuse them physically.

Due process is not used in contemporary English law, though 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 conception of due process, which, as explained below, presently contains many
implied rights not found in the ancient or modern concepts of due process in England.[2]

Due process developed from clause 39 of the Magna Carta in England. When English and
American law gradually diverged, due process was not upheld in England, but did become
incorporated in the Constitution in the United States.

Contents
[hide]

 1 History
o 1.1 Magna Carta
o 1.2 English law and American law diverge
o 1.3 The U.S. Constitution
 2 Applicability
o 2.1 The enumerated due process right
o 2.2 Unenumerated due process rights
 2.2.1 Procedural due process
 2.2.2 Substantive due process
 [Link] Criticisms
  2.2.3 Levels of scrutiny
 3 Incorporation of the Bill of Rights into due process
 4 Due process around the world
 5 See also
 6 Notes
 7 Further reading
 8 External links

[edit] History
[edit] Magna Carta

In clause 39 of the Magna Carta, John of England promised as follows: "No free man shall be
seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived
of his standing in any other way, nor will we proceed with force against him, or send others to do
so, except by the lawful judgment of his equals or by the law of the land."[3] Magna Carta itself
immediately became part of the "law of the land", and Clause 61 of that charter authorized an
elected body of twenty-five barons to determine by majority vote what redress the King must
provide when the King offends "in any respect against any man."[3] Thus, Magna Carta
established the rule of law in England by not only requiring the monarchy to obey the law of the
land, but also limiting how the monarchy could change the law of the land. It should be noted,
however, that in the thirteenth century these provisions may have been referring only to the
rights of landowners, and not to ordinary peasantry or villagers.[4]

Shorter versions of Magna Carta were subsequently issued by British monarchs, and Clause 39
of Magna Carta was renumbered "29."[5] The phrase due process of law first appeared in a
statutory rendition of Magna Carta in A.D. 1354 during the reign of Edward III of England, as
follows: "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."[6]

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.."[7]

Both the clause in Magna Carta and the later statute of 1354 were again explained in 1704
(during the reign of Queen Anne) by the Queen's Bench, in the case of Regina v. Paty.[8] In that
case, the House of Commons had deprived John Paty and certain other citizens of the right to
vote in an election, and had committed them to Newgate Prison merely for the offense of
pursuing a legal action in the courts.[9] The Queen's Bench, in an opinion by Justice Powys,
explained the meaning of "due process of law" as follows:

[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.[8]

Chief Justice Holt dissented in this case, because he believed that the commitment had not in fact
been by a legal authority. The House of Commons had purported to legislate unilaterally, without
approval of the House of Lords, ostensibly to regulate the election of its members.[10] Although
the Queen's Bench held that the House of Commons had not infringed or overturned due process,
John Paty was ultimately freed by Queen Anne when she prorogued Parliament.

[edit] English law and American law diverge

Throughout centuries of British history, many laws and treatises asserted various requirements as
being part of "due process" or included in the "law of the land". This view usually held in regards
to what was required by existing law, rather than what was intrinsically required by due process
itself. As the U.S. Supreme Court has explained, a due process requirement in Britain was not
"essential to the idea of due process of law in the prosecution and punishment of crimes, but was
only mentioned as an example and illustration of due process of law as it actually existed in
cases in which it was customarily used."[11]

Ultimately, the scattered references to "due process of law" in English law did not limit the
power of the government; about this, American law professor John Orth wrote that "the great
phrases failed to retain their vitality."[12] Orth points out that this is generally attributed to the rise
of the doctrine of parliamentary supremacy in the United Kingdom, which was accompanied by
hostility towards judicial review as an undemocratic foreign invention.[13]

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."[14] Lacking the power of judicial review,
English courts possessed no means by which to declare government statutes or acts invalid as a
violation of due process. As a consequence, English law and American law diverged, with
American legislators possessing no means by which to declare judicial invalidation of statutes
incorrect (with the sole exception of proposing a constitutional amendment, which are rarely
successful). 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.[15] ”
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.
[16]
However, neither concept lines up perfectly with the American conception of due process,
which, as explained below, presently contains many implied rights not found in the ancient or
modern concepts of due process in England.[17]

[edit] The U.S. Constitution

In the early years of the United States the terms law of the land and due process were used
somewhat interchangeably.[citation needed] The 1776 Constitution of Maryland, for example, used the
language of Magna Carta, including the law of the land phrase.[18] In New York, a statutory bill
of rights was enacted in 1787, and it contained four different due process clauses.[19] Alexander
Hamilton commented on the language of that New York bill of rights: "The words 'due process'
have a precise technical import, and are only applicable to the process and proceedings of the
courts of justice; they can never be referred to an act of legislature."[20]

New York was the only state that asked Congress to add "due process" language to the U.S.
Constitution. New York ratified the U.S. Constitution and proposed the following amendment in
1788: "[N]o Person ought to be taken imprisoned or disseised of his freehold, or be exiled or
deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law."[21]

In response to this proposal from New York, James Madison drafted a Due Process Clause for
Congress.[22] Madison cut out some language, and inserted the word without, which had not been
proposed by New York. Congress then adopted the exact wording that Madison proposed, after
Madison explained that the Due Process Clause would not be sufficient to protect various other
rights:

Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of
conscience, come in question in that body [Parliament], the invasion of them is resisted by able
advocates, yet their Magna Carta does not contain any one provision for the security of those
rights, respecting which the people of America are most alarmed.[22]

No state or federal constitution in the U.S. had ever before utilized any "due process" wording,
prior to 1791 when the federal Bill of Rights was ratified. However when the U.S. Constitution
took effect in 1789 it contained a Supremacy Clause, which specified that the Constitution itself,
and federal statutes enacted pursuant to the Constitution, would be the supreme "law of the land".
As mentioned, in the early United States, the terms law of the land and due process were used
somewhat interchangeably.

[edit] Applicability
The Fifth Amendment's guarantee of due process is applicable only to actions of the federal
government. The Fourteenth Amendment contains virtually the same phrase, but expressly
applies to the states. Therefore, those two clauses only apply against state actors, and not against
private citizens. The Supreme Court has interpreted those two clauses identically, as Justice Felix
Frankfurter once explained in a concurring opinion: “To suppose that ‘due process of law’ meant
one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require
elaborate rejection.”[23]

The due process clauses apply to "legal persons" (that is, corporate personhood) as well as to
individuals. Many state constitutions also have their own guarantees of due process (or the
equivalent) that may, by their own terms or by the interpretation of that State's judiciary, extend
even more protection to certain individuals than under federal law.

Due process also applies to the creation of taxing districts, as taxation is a deprivation of
property. Due process typically requires public hearings prior to the creation of a taxing district.
[24]

[edit] The enumerated due process right

Due process under the U.S. Constitution restrains the executive and judicial branches, but
additionally restrains the legislative branch. For example, as long ago as 1855, the Supreme
Court explained that, to ascertain whether a process is due process, the first step is to “examine
the constitution itself, to see whether this process be in conflict with any of its provisions....”[25]

In case a person is deprived of liberty by a process that conflicts with some provision of the
Constitution, then the Due Process Clause normally prescribes the remedy: restoration of that
person's liberty. The Supreme Court held in 1967 that “we cannot leave to the States the
formulation of the authoritative ... remedies designed to protect people from infractions by the
States of federally guaranteed rights.”[26]

[edit] Unenumerated due process rights

As a limitation on Congress, the Due Process Clause has been interpreted by the Supreme Court
not only as a remedial requirement when other constitutional rights have been violated, but
furthermore as having additional "procedural" and "substantive" components, meaning that the
Clause purportedly imposes unenumerated restrictions on legal procedures—the ways in which
laws may operate—and also on legal substance—what laws may attempt to do or prohibit. This
theory of unenumerated rights is controversial. For example, Justice Clarence Thomas stated as
follows, in a 2004 dissent:[27]

As an initial matter, it is possible that the Due Process Clause requires only “that our
Government must proceed according to the ‘law of the land’—that is, according to written
constitutional and statutory provisions.” In re Winship, 397 U.S. 358, 382 (1970), (Black, J.,
dissenting).

Despite the objections of people like Justice Hugo Black in Winship, the courts have attempted to
extract unwritten requirements from the Due Process Clause, regarding both procedure as well as
substance. The distinction between substance and procedure is difficult in both theory and
practice to establish. Moreover, the substantive component of due process has proven to be even
more controversial than the procedural component, because it gives the Court considerable
power to strike down state and federal statutes that criminalize various activities.

By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme
Court to mean that “it was not left to the legislative power to enact any process which might be
devised. The [due process] article is a restraint on the legislative as well as on the executive and
judicial powers of the government, and cannot be so construed as to leave Congress free to make
any process ‘due process of law’ by its mere will.”[25] But determining what those restraints are
has been a subject of considerable disagreement.

[edit] Procedural due process

In the United States, criminal prosecutions and civil cases are generally governed by explicit
guarantees of procedural rights under the Bill of Rights. Most of these rights have been
incorporated under the Fourteenth Amendment to the States. Among those rights is the
constitutional right to procedural due process, which has been broadly construed to protect the
individual so that statutes, regulations, and enforcement actions must ensure that no one is
deprived of "life, liberty, or property" without a fair opportunity to affect the judgment or result.

This protection extends to all government proceedings that can result in an individual's
deprivation, whether civil or criminal in nature, from parole violation hearings to administrative
hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal
cases, many of these due process protections overlap with procedural protections provided by the
Eighth Amendment to the United States Constitution, which guarantees reliable procedures that
protect innocent people from being executed, which would be an obvious example of cruel and
unusual punishment.[28]

At a basic level, procedural due process is essentially based on the concept of "fundamental
fairness." For example, in 1934, the United States Supreme Court held that due process is
violated "if a practice or rule offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental."[29] As construed by the courts, it
includes an individual's right to be adequately notified of charges or proceedings, the opportunity
to be heard at these proceedings, and that the person or panel making the final decision over the
proceedings be impartial in regards to the matter before them.[30]

Or, to put it more simply, where an individual is facing a (1) deprivation of (2) life, liberty, or
property, (3) procedural due process mandates that he or she is entitled to adequate notice, a
hearing, and a neutral judge.

The Supreme Court has formulated a balancing test to determine the rigor with which the
requirements of procedural due process should be applied to a particular deprivation, for the
obvious reason that mandating such requirements in the most expansive way for even the most
minor deprivations would bring the machinery of government to a halt. The Court set out the test
as follows: "[I]dentification of the specific dictates of due process generally requires
consideration of three distinct factors: first, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
and, finally, the Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would entail." [31]

Procedural due process has also been an important factor in the development of the law of
personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state
to take away the property of a person who has no connection to it whatsoever. A significant
portion of U.S. constitutional law is therefore directed to what kinds of connections to a state are
enough for that state's assertion of jurisdiction over a nonresident to comport with procedural due
process.

The requirement of a neutral judge has introduced a constitutional dimension into the question of
whether a judge should recuse himself or herself from a case. Specifically, the Supreme Court
has ruled that in certain circumstances, the Due Process Clause of the Fourteenth Amendment
requires a judge to recuse himself on account of a potential or actual conflict of interest. For
example, on June 8, 2009, in Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a
justice of the Supreme Court of Appeals of West Virginia could not participate in a case
involving a major donor to his election to that court.[32]

[edit] Substantive due process

Main article: Substantive due process

The term "substantive due process" (SDP), is commonly used in two ways: first to identify a
particular line of case law, and second to signify a particular attitude toward judicial review
under the Due Process Clause.[33] The term "substantive due process" began to take form in 1930s
legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been
mentioned twice in Supreme Court opinions.[34] SDP involves liberty-based due process
challenges which seek certain outcomes instead of merely contesting procedures and their
effects; in such cases, the Supreme Court recognizes a constitutionally-based "liberty" which
then renders laws seeking to limit said "liberty" either unenforceable or limited in scope. [33]
Critics of SDP decisions typically assert that those liberties ought to be left to the more
politically accountable branches of government.[33]

Courts have viewed the Due Process Clause, and sometimes other clauses of the Constitution, as
embracing those fundamental rights that are “implicit in the concept of ordered liberty.” [35] Just
what those rights are is not always clear, nor is the Supreme Court's authority to enforce such
unenumerated rights clear.[36] Some of those rights have long histories or “are deeply rooted” in
American society.

The courts have largely abandoned the Lochner era approach (ca. 1897-1937) when substantive
due process was used to strike down minimum wage and labor laws in order to protect freedom
of contract. Since then, the Supreme Court has decided that numerous other freedoms that do not
appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these
rights were not protected by the federal courts' doctrine of substantive due process, they could
nevertheless be protected in other ways; for example, it is possible that some of these rights
could be protected by other provisions of the state or federal constitutions,[37] and alternatively
they could be protected by legislatures.[19][38]

Today, the Court focuses on three types of rights under substantive due process in the Fourteenth
Amendment,[citation needed] which originated in United States v. Carolene Products Co., 304 U.S. 144
(1938), footnote 4. Those three types of rights are:

 the first eight amendments in the Bill of Rights (e.g. the Eighth Amendment);
 restrictions on the political process (e.g. the rights of voting, association, and free
speech); and
 the rights of “discrete and insular minorities.”

The Court usually looks first to see if there is a fundamental right, by examining if the right can
be found deeply rooted in American history and traditions. Where the right is not a fundamental
right, the court applies a rational basis test: if the violation of the right can be rationally related to
a legitimate government purpose, then the law is held valid. If the court establishes that the right
being violated is a fundamental right, it applies strict scrutiny. This test inquires into whether
there is a compelling state interest being furthered by the violation of the right, and whether the
law in question is narrowly tailored to address the state interest.

Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v.
Connecticut (1965), wherein the Court held that criminal prohibition of contraceptive devices for
married couples violated federal, judicially enforceable privacy rights. The right to
contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain
amendments that arguably refer to certain privacy rights. The penumbra-based rationale of
Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a
basis for various unenumerated privacy rights. Although it has never been the majority view,
some have argued that the Ninth Amendment (addressing unenumerated rights) could be used as
a source of fundamental judicially enforceable rights, including a general right to privacy, as
discussed by Justice Goldberg concurring in Griswold.[39]

[edit] Criticisms

Critics of substantive due process claim that the doctrine began, at the federal level, with the
infamous 1857 slavery case of Dred Scott v. Sandford. Advocates of substantive due process
acknowledge that the doctrine was employed in Dred Scott, but claim that it was employed
incorrectly. Additionally, the first appearance of substantive due process as a concept appeared
earlier in the case of Bloomer v. McQuewan, 55 U.S. 539 (1852). Chief Justice Taney was not
entirely breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the
Missouri Compromise unconstitutional because an "act of Congress that deprived a citizen of his
liberty or property merely because he came himself or brought his property into a particular
territory of the United States, and who had committed no offence against the laws, could hardly
be dignified with the name of due process of law." Dissenting Justice Curtis disagreed with
Taney about what "due process" meant in Dred Scott.

Criticisms of the doctrine continue as in the past. Critics argue that judges are making
determinations of policy and morality that properly belong with legislators (i.e. "legislating from
the bench"), or argue that judges are reading views into the Constitution that are not really
implied by the document, or argue that judges are claiming power to expand the liberty of some
people at the expense of other people's liberty (e.g. as in the Dred Scott case), or argue that
judges are addressing substance instead of process.

Oliver Wendell Holmes, Jr., a realist, worried that the Court was overstepping its boundaries,
and the following is from one of his last dissents:[40]

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope
given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights
of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of
those rights if they happen to strike a majority of this Court as for any reason undesirable. I
cannot believe that the Amendment was intended to give us carte blanche to embody our
economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to
me to justify the present and the earlier decisions to which I have referred. Of course the words
due process of law, if taken in their literal meaning, have no application to this case; and while it
is too late to deny that they have been given a much more extended and artificial signification,
still we ought to remember the great caution shown by the Constitution in limiting the power of
the States, and should be slow to construe the clause in the Fourteenth Amendment as
committing to the Court, with no guide but the Court's own discretion, the validity of whatever
laws the States may pass.

Originalists, such as Supreme Court Justice Clarence Thomas, who rejects substantive due
process doctrine, and Supreme Court Justice Antonin Scalia, who has also questioned the
legitimacy of the doctrine, call substantive due process a "judicial usurpation"[41] or an
"oxymoron."[42] Both Scalia and Thomas have occasionally joined Court opinions that mention
the doctrine, and have in their dissents often argued over how substantive due process should be
employed based on Court precedent.

Many non-originalists, like Justice Byron White, have also been critical of substantive due
process. As propounded in his dissents in Moore v. East Cleveland[43] and Roe v. Wade, as well
as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due
process gives the judiciary too much power over the governance of the nation and takes away
such power from the elected branches of government. He argued that the fact that the Court has
created new substantive rights in the past should not lead it to "repeat the process at will." In his
book Democracy and Distrust, non-originalist John Hart Ely criticized "substantive due process"
as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase
green pastel redness.

Originalism is usually linked to opposition against substantive due process rights, and the
reasons for that can be found in the following explanation that was endorsed unanimously by the
Supreme Court in a 1985 case: "[W]e must always bear in mind that the substantive content of
the [Due Process] Clause is suggested neither by its language nor by preconstitutional history;
that content is nothing more than the accumulated product of judicial interpretation of the Fifth
and Fourteenth Amendments."[44]
Originalists do not necessarily oppose protection of the rights heretofore protected using
substantive due process, and instead most originalists believe that such rights should be
identified and protected legislatively, or via further constitutional amendments, or via other
existing provisions of the Constitution.

The perceived scope of the Due Process Clause was originally different than it is today. For
instance, even though many of the Framers of the Bill of Rights believed that slavery violated the
fundamental natural rights of African-Americans, a "theory that declared slavery to be a
violation of the due process clause of the Fifth Amendment.... requires nothing more than a
suspension of reason concerning the origin, intent, and past interpretation of the clause."[45]

[edit] Levels of scrutiny

When a law or other act of government is challenged as a violation of individual liberty under
the Due Process Clause, courts nowadays primarily use two forms of scrutiny, or judicial review.
This inquiry balances the importance of the governmental interest being served and the
appropriateness of the government's method of implementation against the resulting
infringement of individual rights. If the governmental action infringes upon a fundamental right,
the highest level of review—strict scrutiny—is used.[46] To pass strict scrutiny review, the law or
act must be narrowly tailored to further a compelling government interest.

When the governmental restriction restricts liberty in a manner that does not implicate a
fundamental right, rational basis review is used. Here a legitimate government interest is enough
to pass this review. There is also a middle level of scrutiny, called intermediate scrutiny, but it is
primarily used in Equal Protection cases rather than in Due Process cases: “The standards of
intermediate scrutiny have yet to make an appearance in a due process case.”[47]

[edit] Incorporation of the Bill of Rights into due process

Main article: Incorporation (Bill of Rights)

Incorporation is the legal doctrine by which the Bill of Rights, either in full or in part, is applied
to the states through the Fourteenth Amendment's Due Process Clause. The basis for
incorporation is substantive due process regarding substantive rights enumerated elsewhere in
the Constitution, and procedural due process regarding procedural rights enumerated elsewhere
in the Constitution.[48]

Incorporation started in 1897 with a takings case,[49] continued with Gitlow v. New York (1925),
which was a First Amendment case, and accelerated in the 1940s and 1950s. Justice Hugo Black
famously favored the jot-for-jot incorporation of the entire Bill of Rights. Justice Felix
Frankfurter, however—joined later by Justice John M. Harlan—felt that the federal courts should
only apply those sections of the Bill of Rights that were "fundamental to a scheme of ordered
liberty." It was the latter course that the Warren Court of the 1960s took, although, almost all of
the Bill of Rights has now been incorporated jot-for-jot against the states.
The role of the incorporation doctrine in applying the guarantees of the Bill of Rights to the
states is just as notable as the use of due process to define new fundamental rights that are not
explicitly guaranteed by the Constitution's text. In both cases, the question has been whether the
right asserted is "fundamental", so that, just as not all proposed "new" constitutional rights are
afforded judicial recognition, not all provisions of the Bill of Rights have been deemed
sufficiently fundamental to warrant enforcement against the states.

Some people, such as Justice Black, have argued that the Privileges or Immunities Clause of the
Fourteenth Amendment would be a more appropriate textual source for the incorporation
doctrine. The Court has not taken that course, and some point to the treatment given to the
Privileges or Immunities Clause in the 1873 Slaughter-House Cases as a reason why. Although,
the Slaughter-House Court did not expressly preclude application of the Bill of Rights to the
states, the Clause largely ceased to be invoked in opinions of the Court following the Slaughter-
House Cases, and when incorporation did begin, it was under the rubric of due process. Scholars
who share Justice Black's view, such as Akhil Amar, argue that the Framers of the Fourteenth
Amendment, like Senator Jacob Howard and Congressman John Bingham, included a Due
Process Clause in the Fourteenth Amendment for the following reason: "By incorporating the
rights of the Fifth Amendment, the privileges or immunities clause would...have prevented states
from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even
further by extending the benefits of state due process to aliens."[50]

The Supreme Court has consistently held that Fifth Amendment due process means substantially
the same as Fourteenth Amendment due process,[51] and therefore the original meaning of the
former is relevant to the incorporation doctrine of the latter. When the Bill of Rights was
originally proposed by Congress in 1789 to the states, various substantive and procedural rights
were "classed according to their affinity to each other" instead of being submitted to the states
"as a single act to be adopted or rejected in the gross," as James Madison put it.[52] Roger
Sherman explained in 1789 that each amendment "may be passed upon distinctly by the States,
and any one that is adopted by three fourths of the legislatures may become a part of the
Constitution."[53] Thus, the states were allowed to reject the Sixth Amendment, for example,
while ratifying all of the other amendments including the Due Process Clause; in that case, the
rights in the Sixth Amendment would not have been incorporated against the federal
government. The doctrine of incorporating the content of other amendments into “due process”
was thus an innovation, when it began in 1925 with the Gitlow case, and this doctrine remains
controversial today.

[edit] Due process around the world

Various countries recognize some form of due process under customary international law.
Although the specifics are often unclear, most nations agree that they should guarantee foreign
visitors a basic minimum level of justice and fairness. Some nations have argued that they are
bound to grant no more rights to aliens than they do to their own citizens—the doctrine of
national treatment—which also means that both would be vulnerable to the same deprivations by
the government. With the growth of international human rights law and the frequent use of
treaties to govern treatment of foreign nationals abroad, the distinction in practice between these
two perspectives may be disappearing.
[edit] See also
 continuance  subpoena ad testificandum
 fair procedure  subpoena duces tecum
 fundamental justice
 peremptory norm

[edit] Notes
1. ^ Marshall, 69.
2. ^ Marshall, 69–70.
3. ^ a b The Text of Magna Carta (1215)
4. ^ McKechnie, William Sharp (1905). Magna Carta: A Commentary on the Great Charter of King John.
Glasgow: Robert MacLehose and Co., Ltd.. pp. 136–37. [Link]
id=RCWIAAAAMAAJ.: "The question must be considered an open one; but much might be said in favour
of the opinion that 'freeman' as used in the Charter is synonymous with 'freeholder'...."
5. ^ The Text of Magna Carta (1297)
6. ^ 28 Edw. 3, c. 3
7. ^ 2 Institutes of the Laws of England 46 (1608)
8. ^ a b Regina v. Paty, 92 Eng. Rep. 232, 234 (1704) reprinted in Reports of Cases Argued and Adjudged in
the Courts of King's Bench and Common Pleas: In the Reigns of the Late King William, Queen Anne, King
George the First, and King George the Second, Volume 2, page 1105, 1108 (1792).
9. ^ Dudley Julius Medly, A Student's Manual of English Constitutional History 613 (1902)
10. ^ George Godfrey Cunningham,4 Lives of Eminent and Illustrious Englishmen 54 (1835)
11. ^ Hurtado v. California, 110 U.S. 516 (1884)
12. ^ John V. Orth, Due Process of Law: A Brief History (Lawrence, KS: University Press of Kansas, 2003),
30-31.
13. ^ Orth, 28-30.
14. ^ Orth, 29.
15. ^ Geoffrey Marshall, "Due Process in England", in Nomos XVIII: Due Process, eds. J. Roland Pennock &
John W. Chapman, 69-92 (New York: New York University Press, 1977), 69.
16. ^ Marshall, 69.
17. ^ Marshall, 69–70.
18. ^ Constitution of Maryland (1776)
19. ^ a b New York Bill of Rights (1787)
20. ^ Alexander Hamilton, Remarks on an Act for Regulating Elections, New York Assembly (6 February
1787)
21. ^ New York Ratification Resolution (1788)
22. ^ a b Madison Speech (1789)
23. ^ Malinski v. New York, 324 U.S. 401, 415 (1945), (Frankfurter, J., concurring)
24. ^ Browning v. Hooper, 269 U.S. 396, 46 S. Ct. 141, 70 L. Ed. 330 (1926)
25. ^ a b Murray v. Hoboken Land, 59 U.S. 272 (1855)
26. ^ Chapman v. California, 386 U.S. 18, 22 (1967).
27. ^ Hamdi v. Rumsfeld, 542 U.S. 507 (2004) quoting In re Winship, 397 U.S. 507, 382 (1970), (Black, J.,
dissenting)
28. ^ Herrera v. Collins, 506 U.S. 390 (1993): "We have, of course, held that the Eighth Amendment requires
increased reliability of the process by which capital punishment may be imposed."
29. ^ Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)
30. ^ Goldberg v. Kelly, 397 U.S. 254, 267 (1970)
31. ^ Eldridge v. Williams, 424 U.S. 319, 335 (1976)
 32. ^ Jess Bravin and Kris Maher (June 8, 2009). "Justices Set New Standard for Recusals". The Wall Street
Journal. [Link] Retrieved 2009-06-09.
33. ^ a b c White, G. Edward (2000). The Constitution and the New Deal. Cambridge, MA: Harvard University
Press. pp. 244–46.
34. ^ White, G. Edward (2000). The Constitution and the New Deal. Cambridge, MA: Harvard University
Press. pp. 259.
35. ^ Palko v. Connecticut, 302 U.S. 319 (1937)
36. ^ Hawkins, Bryan (2006). "The Glucksberg Renaissance: Substantive Due Process since Lawrence v.
Texas". Michigan Law Review 105: 409, 412.
[Link]
37. ^ Troxel v. Granville, 530 U.S. 57, 65 (2000), (Kennedy, J., dissenting): "Pierce and Meyer, had they been
decided in recent times, may well have been grounded upon First Amendment principles protecting
freedom of speech, belief, and religion."
38. ^ Williams, George. “The Federal Parliament and the Protection of Human Rights”, Research Paper 20
1998-99, Parliament of Australia (1999): “nations that had relied upon the common law tradition to protect
rights...have subsequently passed statutory Bills of Rights. For example, the United Kingdom Parliament
has enacted the Human Rights Act 1998 (UK), while the New Zealand Legislature has passed the New
Zealand Bill of Rights Act 1990.... Parliament might move to protect a few core rights that are obviously
regarded as basic and fundamental to Australian democracy. This should not include rights such as ‘due
process of law’ in the Fifth and Fourteenth Amendments to the United States Constitution, which has a
highly developed meaning in the United States context but no resonance in Australia.”
39. ^ Griswold v. Connecticut, 381 U.S. 479 (1965): “I do not mean to imply that the .... Ninth Amendment
constitutes an independent source of rights protected from infringement by either the States or the Federal
Government.”
40. ^ Baldwin v. Missouri, 281 U.S. 586, 595 (1930)
41. ^ Chicago v. Morales, 527 U.S. 41 (1999), (Scalia, J., dissenting)
42. ^ U.S. v. Carlton 512 U.S. 26 (1994), (Scalia, J., concurring)
43. ^ Moore v. East Cleveland, 431 U.S. 494, 543 (1977), (White, J., dissenting).
44. ^ University of Michigan v. Ewing, 474 U.S. 214 (1985) quoting Moore v. East Cleveland, 431 U.S. 494,
543 (1977) (White, J., dissenting).
45. ^ Robert Cover, Justice Accused 157 (Yale Univ. Press 1975)
46. ^ See, e.g., Adarand Constructors v. Peña, 515 U.S. 200 (1995); Sugarman v. Dougall, 413 U.S. 634
(1973); Sherbert v. Verner, 374 U.S. 398 (1963).
47. ^ Shaman, Jeffrey. [1] Constitutional Interpretation: Illusion and Reality] (Greenwood 2001).
48. ^ Congressional Research Service, Fourteenth Amendment: Rights Guaranteed: Procedural Due Process:
Criminal: “practically all the criminal procedural guarantees of the Bill of Rights--the Fourth, Fifth, Sixth,
and Eighth Amendments--contain limitations which are fundamental to state criminal justice systems and
that the absence of one or the other particular guarantees denies a suspect or a defendant due process of
law.”
49. ^ Chicago, Burlington & Quincy Railway Co. v. Chicago, 205 U.S. 530 (1897)
50. ^ Amar, Akhil (1992). "The Bill of Rights and the Constitution". Yale Law Journal (New Haven: The Yale
Law Journal Company) 101 (6): 1193. doi:10.2307/796923. JSTOR 796923.
[Link]
51. ^ Hurtado v. California, 110 U.S. 516 (1884): "when the same phrase was employed ... it was used in the
same sense and with no greater extent."
52. ^ Letter from James Madison to Alexander White (Aug. 24, 1789)
53. ^ Letter from Roger Sherman to Simeon Baldwin (Aug. 22, 1789).

[edit] Further reading

 Goldberg v. Kelly
 "U.S. Constitution: Fifth Amendment". Findlaw.
[Link]
  Breyer, Stephen (2005). Active Liberty: Interpreting Our Democratic Constitution. New
York: Knopf. ISBN 0307263134.
 Friendly, Henry J. (1975). "Some Kind of Hearing". University of Pennsylvania Law
Review (University of Pennsylvania Law Review, Vol. 123, No. 6) 123 (6): 1267–1317.
doi:10.2307/3311426. [Link]
 Hawkins, Brian (2006). "The Glucksberg Renaissance: Substantive Due Process since
Lawrence v. Texas". Michigan Law Review 105 (2): 409.
[Link]
 Hyman, Andrew (2005). "The Little Word ‘Due’". Akron Law Review 38: 1.
[Link]
 Kadish, Sanford H. (1957). "Methodology and Criteria in Due Process Adjudication—A
Survey and Criticism". Yale Law Journal (University of Pennsylvania Law Review, Vol.
123, No. 6) 66 (3): 319–363. doi:10.2307/3311426. [Link]
 Madison, P. A. (2008). "A Dummies Guide to Understanding the Fourteenth
Amendment". [Link].
[Link]
 Nowak, John; Rotunda, Ronald (2000). Constitutional Law. West.
 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.
 Ring, Kevin (2004). Scalia Dissents: Writings of the Supreme Court's Wittiest, Most
Outspoken Justice. Washington: Regnery. ISBN 0895260530.
 Yoshino, Kenji (2006-01-15). "The Pressure to Cover: The New Civil Rights". The New
York Times Magazine. [Link]
Retrieved 2010-05-01. Discussing potential of liberty rights to overtake equality rights.

[edit] External links

Look up due process in Wiktionary, the free dictionary.

Wikiquote has a collection of quotations related to: Due process

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