Due Process

The term ‘‘due process’’ appears in the U.S. Constitution in the Fifth and Fourteenth Amendments, but it is not defined there. It is one of those fundamental legal concepts that arises from Anglo–American legal tradition, and we need to look to history for the meaning. The key word is ‘‘due,’’ meaning fair or that to which one has a right, as in the phrase, ‘‘Give him his due.’’ But historical precedent does not leave the definition of fairness entirely to some natural sense of justice or allow us to be satisfied that process is ‘‘due’’ if it is merely uniform and equally applied. Implicit in the concept is a minimum standard of protection of rights that might be achieved by different procedures, but is unlikely to be protected unless certain procedures are strictly enforced to some minimum degree.

In the amendments, the phrase is qualified by the phrase ‘‘of law,’’ and legal scholars and judges have equated ‘‘due process of law’’ with the phrase ‘‘by the law of the land,’’ suggesting that it could be defined by positive law, such as a statute, or by natural law, common law, or traditional judgments of equity. The phrase ‘‘by the law of the land’’ was first established in 1215 in Magna Carta: ‘‘No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.’’

This was rendered into statute in 1354: ‘‘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 further affirmed in 1628 in the Petition of Right: ‘‘. . . no freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.’’

The equivalence of the phrases ‘‘due process of law’’ and ‘‘law of the land’’ was asserted by Coke in his Second Institutes, in which he specified that ‘‘law’’ meant ‘‘the common law’’ or ‘‘by the indictment or presentment of good and lawful men . . . or by writ original of the Common Law.’’
The phrase appears again in 1647 in the Heads of the Proposals Offered by the Army:

That the right and liberty of the Commons of England may be cleared and vindicated as to a due exemption from any judgment, trial or other proceeding against them by the House of Peers, without the concurring judgment of the House of Commons: as also from any other judgment, sentence or proceeding against them, other than by their equals, or according to the law of the land.

The phrase later appeared in 1776 in the Virginia Declaration of Rights: ‘‘. . . that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.’’

These usages suggest that ‘‘law of the land’’ is distinguished from jury verdicts. However, in the Fifth and Fourteenth Amendments it is apparent that ‘‘law of the land’’ and ‘‘judgment of his peers’’ have been combined in the phrase ‘‘due process.’’ Thus, we can conclude that jury verdicts and, for that matter, the indictments or presentments of grand juries are subsumed in the broader concept of ‘‘due process.’’

Due process can be legislative or administrative, as well as judicial, because legislative and executive branch officials may conduct proceedings that have a judicial aspect, which may ultimately affect individual rights, but the focus here will be on judicial proceedings, since most dispositions of individual rights eventually involve the judiciary.

In general, due process is bounded to a finite period of time, with a beginning and an end, and may be classified into types and divided into phases. The two most common types are the inquisitorial, to acquire information and reach a finding, and the dispositive, to decide the assignment and operation of rights, powers, and duties. Inquisitorial proceedings, sometimes called ‘‘ex parte,’’ generally involve only one side of an issue, whereas dispositive proceedings are generally adversarial, allowing contenders to argue their side of the case. Original parties may be joined by intervenors, who enter the case as additional parties, or by amici curiae, who offer commentary and perhaps evidence not offered by the parties, but in the public interest.

A hearing on a petition for a search, seizure, arrest, or execution of judgment is inquisitorial, as is a grand jury proceeding, a legislative issuance of a declaration of war or letters of marque and reprisal, or investigatory hearings of legislative committees. It is a violation of due process to conduct only an inquisitorial proceeding when a dispositive proceeding is required or to proceed with a dispositive proceeding if an inquisitorial proceeding is required to precede and authorize it.

Most of judicial due process is centered on one or more courts, which are a specialized form of deliberative assembly with specific powers to make certain kinds of decisions in certain ways. A court proceeding may be called a hearing or a trial. It is composed of various officers with specialized duties. Presiding over the proceedings is the bench, which may consist of one or more officials, often called ‘‘judges’’ in Anglo American courts and ‘‘presidents’’ or other titles in the courts of some other countries. Other officers of the court include the bar, consisting of the attorneys for the parties, and witnesses, jurors, bailiffs, recorders, clerks, and perhaps others. Even the audience may be officers if sworn to perform certain duties during the proceedings, such as witnessing them.

A trial jury is a specialized form of subassembly within the larger court, with its officer, the foreman, and procedures for reaching a verdict. A grand jury, however, is an inquisitorial assembly with the power to subpoena witnesses, interrogate them under oath, and report their findings. They also have the special power to authorize a criminal prosecution and appoint or ratify the appointment of the prosecutor, who will usually appear before it as a complainant and present his evidence.

Dispositive due process generally begins with some kind of due notice, usually called a petition or complaint, served on the defendant or respondent. It may enter an inquisitorial phase (sometimes called discovery), proceed through a series of fair hearings leading to a finding (often called a verdict), and then to an order of the court, called a sentence in a criminal proceeding. This order may consist of a disablement, or restriction, of the exercise of a right of a party called the defendant or respondent, a deprivation of a right disabled, and a warrant to some agent to execute the deprivation. That or another court may exercise continuing oversight on the execution until it is completed, which terminates the due process.

Due process proceedings may be criminal, leading to a punitive deprivation of life, liberty, or property, or civil, leading to a nonpunitive deprivation of any of those rights. The level of protection of defendants or respondents is higher in criminal than in civil proceedings Beginning with the opinion in Dred Scott, courts began to make the distinction between procedural and substantive due process. While courts have not consistently defined the distinction, the notion of substantive due process generally speaks to the question of how much protection, as distinct from how to provide that protection.

Although not usually discussed in such terms, the distinction can be seen by examining the requirements for jury verdicts to authorize the court to grant the petition of the plaintiff or prosecutor. It is procedural that the verdict be rendered by a jury and not the bench, but substantive that the jury be of a certain size (twelve in criminal cases) and that its verdict be a supermajority of the jurors, in civil cases, or unanimous, in criminal cases. It also enters as rules of evidence, ‘‘preponderance’’ in civil cases and ‘‘beyond a reasonable doubt’’ in criminal cases, or ‘‘probable cause’’ to authorize a search warrant.

Contrary to the Declaration of Independence that ‘‘life, liberty, and the pursuit of happiness’’ are ‘‘unalienable’’ rights, the exercise of all rights, except due process rights, may be disabled and deprived by some kind of due process, even if the rights are not removed. Therefore, the right to due process is the most fundamental for the exercise of rights. The problem remains, then, of determining the minimum levels of substantive protection and how much variation of procedural due process is consistent with maintaining that substantive level. This is not defined with sufficient specificity in constitutions, and while court precedents may define it in many ways, those precedents may collide with statutes that represent the findings of the legislative branch or the constitutions of states, provisions of which may be challenged in federal courts.

The question sometimes arises whether a person has a positive right to petition and get a fair hearing (called ‘‘oyer’’ in old English usage) and a just decision (called ‘‘terminer’’ in old English usage). The answer is that the right to petition is only the right not to be punished for petitioning and, while there is a right to terminer if a court of competent jurisdiction accepts a petition and grants oyer, there is no right to oyer, except for prerogative writs (see the following). This does not affect whether one has a justiciable right, only whether he or she will get the support of the court in enforcing his right. A court is a public service and the expenditure of a scarce resource, to which no one can have a justiciable or constitutional right to a sufficient allocation. All one can have is a right to a fair opportunity for oyer and terminer under the principle of equal protection, lacking which a person must enforce his or her rights by extrajudicial means.

The main purpose of public courts is not to protect everyone’s rights, but rather to avoid the conflict, and perhaps violence, that can arise from extrajudicial enforcement. The public policy of almost every country is to demand that everyone defer extrajudicial enforcement of their rights if that can lead to conflict and seek the support of a court, if the courts are open, whose judgments can then inform the public which side of a dispute to join in supporting. When the court and public join in helping people enforce their rights, it is less likely that the party judged to be in the wrong will resist. It should always be kept in mind, however, that, ultimately, courts have no power to command that is not based on public consent and support from one judgment to the next. They do not have armies, and if officials and civilians ignored their orders, the rule of law would collapse.

This leads to an important element of due process called ‘‘presumption,’’ to which the parties to various kinds of disputes have certain rights. The most fundamental of these is the right to a presumption of nonauthority, which is most clearly represented in the Ninth Amendment to the U.S. Constitution. It is the basis for the presumption in favor of the defendant, putting the burden of proof on the plaintiff or prosecutor. It is also the basis for the right of private prosecution of a public right and to have oyer and terminer on petitions for the common-law prerogative writs, such as quo warranto, habeas corpus, mandamus, prohibito, procedendo, and certiorari. The court has a duty to hear cases concerning these writs before other cases, and the public has a duty to consider issuing by default if the respondent and court, having been duly noticed, fail to respond or to hold oyer and terminer, respectively.

The key element of notice can take many forms. A filing with a court is a notice to the court and, while some courts have arrogated a power to refuse to accept certain filings, this is no more proper than it would be for a witness to refuse to accept a subpoena or for a citizen to refuse to accept a summons to appear for jury duty; he is considered noticed when it is presented to him, whether he accepts it or not. The defendant in a case is deemed noticed by a summons to appear and answer the petition of the plaintiff or prosecutor, and if he ignores it, he is subject to penalties or a default judgment. A criminal arrest is a kind of notice to appear for arraignment and may or may not be custodial—that is, be combined with detention. On a petition for a prerogative writ, notice is to a public or private official to prove his authority to perform or not perform certain acts or, as with a quo warranto, to act or continue holding an office.

A public notice is one posted at one or more public places or in a publication of record. It is used for such purposes as to call for a public assembly or election or for a militia muster; to announce a public sale, perhaps on a foreclosure or to satisfy a judgment; or as a way to reach a public or private party whose identity or whereabouts are unknown, such as the owner of unclaimed property or property on which taxes are overdue.

The substantive component of notice is that the respondent must have sufficient time to respond and prepare to respond. For example, the traditional and usually statutory periods for responding to a petition for a prerogative writ were three to twenty days, depending on the distance of the respondent from the court, and usually twenty days for public notices. If the respondent needs more time to prepare a response, he or she may petition the court for additional time, called a continuance, but granting a continuance is generally at the discretion of the court.

There are a number of open issues involving due process. For example, during the period just before and after the founding of the United States, the standard of due process was to argue all issues of law in the presence of the jury, especially in criminal cases. It was understood that although the primary role of the jury was to bring a verdict on the facts, in bringing a general verdict of guilty or not guilty, they necessarily had to review the decisions of the bench and could only do so if they heard all the legal argument that led to such decisions. However, beginning in the second third of the nineteenth century, first in England and then in the United States, courts began to demand that legal argument be made in written pleadings, mostly presented to the bench prior to convening the jury, and decided in chambers or out of the hearing of the jury.

This process has been called ‘‘Mansfieldization’’ by some, after Lord Mansfield, an English jurist of the late eighteenth century, who led the courts toward this practice. He was opposed by Lord Camden, whose views on the role of the jury in reviewing the legal argument were more popular with English Whigs and with the founders of the United States. Today, the bench will hold a party or his attorney in contempt or initiate disbarment of a lawyer if he mentions the law in the presence of the jury, other than perhaps in the course of raising an objection. The evidence of history strongly supports the position that this practice is a violation of the due process rights of defendants.

Another controversy concerns the practice of holding persons as material witnesses or for contempt of court at the sole discretion of a judge, for long periods of time, without access to counsel. If they were charged with a crime, these individuals would have to be released for lack of access to counsel, lack of speedy trial, lack of compulsion of witnesses, or other due process violations. There is no express provision of the U.S. Constitution that authorizes criminal prosecution for contempt of court. The power is asserted by judges as an inherent power of courts. They also assert the power to make their own rules of judicial procedure, even contrary to legislative statutes, and to control who may be admitted to the practice of law in their courts by a customary practice of admitting lawyers to the bar and disbarring them or prosecuting laypersons for the unauthorized practice of law.

An ongoing controversy concerns the traditional doctrine or practice of stare decisis, which means ‘‘let the decision stand.’’ There is an ancient doctrine of law to decide like cases alike, sometimes called the First Law, and the constitutional requirements for equal protection and due process would seem to incorporate it. Certainly, court precedents that preceded the adoption of the written U.S. Constitution and were well known to the founders are historical evidence of what the founders meant when they used similar language in the Constitution. The requirement for finality of due process also supports the related doctrine of res judicata that things decided in a case do not have to be decided again, unless error or abuse can be shown. It is also reasonable to use court decisions in exemplary cases to clarify ambiguities in written constitutions or statutes and sharpen the boundaries of interpretation.

The problem arises when past decisions or opinions involving similar issues are treated as binding rather than as merely persuasive in deciding other cases. Court decisions and opinions can progressively depart from original understanding until decisions that rely more on precedents than on original text, structure, or historical evidence can depart from the meaning of the enactments in important ways. A judicial process that never returns to original text, structure, and history to re-examine precedent and correct departures or does so only at the top level of the U.S. Supreme Court (which has recently been accepting only about eighty of the eight thousand cases submitted to it each year) cannot be considered constitutional due process. Lower courts can try to distinguish issues in their cases from past precedents to return to original understanding, but this is too often an exercise in legal sophistry that builds a body of precedents that can support almost any decision at all. It leaves too much to the discretion of the bench, thereby subverting the rule of law.

The Fourteenth Amendment expanded the field of controversy over due process. In extending the jurisdiction of federal courts of general jurisdiction to cases between a citizen and his state over infringement of rights recognized for citizens of the United States, it presented the problem that such rights, or ‘‘immunities,’’ could not be defined merely as the complement of delegated powers. The essential idea of the Ninth and Tenth Amendments is that public action that Congress is not authorized to disable or restrict is a right and any declaration of a right is a restriction on delegated powers. Thus, deciding immunity when there is only one sovereign is logically straightforward, in principle.

But states are also sovereigns with their own constitutions that delegate other powers not delegated to U.S. officials by the U.S. Constitution. Powers not delegated to state officials by state constitutions define immunities under the state constitution or statutes, but that still leaves a zone of potential contention where powers are delegated by a state constitution that intrudes into the immunities defined by nondelegation of powers by the U.S. Constitution. Most of this zone of contention arises from the ‘‘police powers’’ provisions of state constitutions to authorize legislation of the health, safety, order, or morals of the public. There is no such broad provision in the U.S. Constitution. The vagueness of state police powers could be interpreted to authorize infringement of almost any federal immunity. This has left the federal courts to adopt standards of review and rational basis tests and a distinction between ‘‘fundamental’’ and ‘‘nonfundamental’’ rights. Only the first of these is protected from state action. This has led the U.S. Supreme Court to authorize state departures from the standards of federal due process in what is called ‘‘selective incorporation’’ of federal immunities.


References and Further Reading

  • Coke, Sir Edward. Institutes of the Laws of England, Part II. London: 1641. http://www.constitution.org/ coke/coke2nd.htm.
  • Haines, Charles Grove. The Revival of Natural Law Concepts. London: Oxford University Press, 1930, Chaps. 5, 6. http://www.constitution.org/haines/haines_005.htm.
  • Magna Carta, Art. 39. See also Art. 55. http://www. constitution.org/eng/magnacar.htm.
  • Matthews v. Eldridge, 424 U.S. 319 (1976). Often cited as defining sufficient condition of a due process claim, it is sometimes mistakenly taken as a necessary condition to limit standing to those who have suffered actual injury, contrary to the historic right to prosecute public rights privately. http://laws.findlaw.com/us/424/319.html.
  • Petition of Right, 1628. Art. 3. http://www.constitution.org/ eng/petright.htm.
  • Roland, Jon. ‘‘Presumption of Nonauthority and Unenumerated Rights,’’ http://www.constitution.org/9ll/schol/ pnur.htm.
  • Winter, Steven L., The Metaphor of Standing and the Problem of Self-Governance. 40 Stan. L. Rev. 1371 (July 1988). http://www.constitution.org/duepr/standing/winter_ standing.htm.
  • Wood, Horace G. A Treatise on the Legal Remedies of Mandamus and Prohibition, Habeas Corpus, Certiorari, and Quo Warranto. Albany: Little, 1896, section on quo warranto. http://www.constitution.org/cmt/woodhg/ wood-hc.htm.

See also Incorporation Doctrine


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