Due Process

There is no process definition of the term due process. Over the years, the US Supreme Court has not been of much help in giving a precise definition of the due process. Magna Carta – document that form the ancestry of the US constitution – refers to due process as legal judgment of peers and law of the state. Due process is the legal requirement of all states to respect the right of an individual. Due process helps in balancing the power of law of the land and protecting an individual from the excessive power of the law. Therefore, if the government harms an individual due to failure to follow the exact course of the law, it will constitute a violation of the due process and offense against the rule of the law. Various parties deem that due process limits laws and legal proceedings. This necessitates judges to define due process with regard to guaranteeing justice, fairness, and liberty. Sometimes judges make controversial decisions that contravene natural justice because of due process.

Due Process and the Bill of Rights

The Bill of Rights in the American constitution defines the rights that the Americans have over the federal government. The Americans did not have any protection against acts of the state government until almost a century after gaining independence. The Fourteenth Amendment, which was ratified in 1868, formulated a mechanism for imposing the Bill of Rights. The ‘due process’ clause is the mechanism that guarantees upholding the Bill of Rights by the state governments (Kanovitz, 2012). The Fourteenth Amendment claims that states should not deprive an individual life, property or liberty without due process of law. The Fifth Amendment also contains a similar clause that limits the actions of the federal government (Walsh, Kemerer, & Maniotis, 2010). Therefore, the due process clause means that states or federal government may regulate the rights of persons or take away the rights altogether without violating the constitution if they follow the due process of the law.

The inclusion of the due process clause can be traced from way back in chapter 39 of the Magna Carta, where King John stated “no free man shall be taken and imprisoned or disseized 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 and by the law of the land” (Wasserman, 2004). The term law of the land necessitated the provision of enough evidence to prove the guilt of an individual. This included taking oath. The term ‘due process of law’ first appeared in the statutory version of chapter 39 of the Magna Carta in 1354. The charter stated “ no man of what estate or condition shall be put out of land or tenement, nor imprisoned, disinherited, or put to death without being brought to answer by the due process of the law” (Wasserman, 2004). Magna Carta was the result of a struggle between Kings and barons. The understanding that founders of the American Constitution had of the meaning of the due process in including the clause in the Fifth and Fourteenth Amendment is that the term ‘by the due process’ meant ‘by the law of the land’ or ‘by the process of law’. Therefore, the term due process helps in incorporating all relevant laws to ensure deliverance of justice.

The clause due process helps in protecting the fundamental human rights of all American citizens. The Bill of Rights defines the rights that American citizens have. However, states or the federal government may deny some rights. They should follow the due process of law before denying individuals any right. The Fourteenth Amendment prohibits state governments from denying people the right to life, property or liberty without following the due process of law. The Supreme Court refers to the Bill of Rights to determine what process was due (Kanovitz, 2012).  The Fourteenth Amendment has gradually integrated the central guarantees of the Bill of Rights and made state governments adhere to the due process of law through selective incorporation. Selective incorporation ensures that rights that are fundamental in the American justice system are incorporated into the due process. States are forbidden from denying these rights. Currently, most provisions of the Bill of Rights have been incorporated in the due process. Whether a right is fundamental to the American justice system is the main criterion that determines incorporation of the right. The Fourteenth Amendment ensures that states provide as much protection to its residents as the US Constitution demands. Therefore, federal standards are the mare minimum that states should meet. However, states are at liberty to impose higher standards.

Procedural Due Process

The American justice system has elaborate procedures that should be adhered to ensure the provision of justice. Procedural due process necessitates governments to give an individual adequate notice and hearing prior to depriving an individual the right to life, liberty or property. Procedural due process is not only restricted to criminal proceedings; it is applicable whenever the government deprives an individual the right to life, property or liberty (Walsh, Kemerer, & Maniotis, 2010). For example, procedural due process is necessary before the government can revoke an offender’s probation, seize property, or suspend a student from a public school. This is because these actions deny an individual the right to liberty or property.

Procedures that are necessary to satisfy a due process depend on three factors: the importance of the right in question, the degree with which the additional safeguards are likely to reduce the risk making a wrong decision, and the financial or administrative burden of the government providing the procedures. The high stakes at criminal trials necessitate maximum procedural protection. This is because criminal trial threatens to deny an individual the right to life or liberty. The US Constitution provides several procedural safeguards, which include right to receive notice of the charges, right to have an impartial tribunal or jury, right to testify, right to cross-examine witnesses, and the right of an individual having a counsel of choice. In addition, an individual has a right to get professional help from various experts such as psychiatrists. The government has the burden of proving that an individual is guilty beyond any reasonable doubt (Frank, 2012).

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Issues of the procedural due process outside the criminal law context usually arise when the federal government deprives an individual certain benefits that the state conferred. Goldberg v. Kelly (1970) is the first case that had issues of procedural due process. In the case, the court ruled that a welfare recipient had a right to a hearing and an opportunity to cross-examine witnesses prior to termination of the individual’s benefits. In so doing, Goldberg helped in breaking the constitutional ground as what constitutes property, which is protected by the due process clause (Frank, 2012).

Substantive Due Process

Procedural due process ensures that the process of depriving an individual any right or benefit is fair. However, substantive due process prohibits state legislature or Congress from denying an individual, certain rights altogether. Substantive due process necessitates all laws to be constitutional. Substantive due process points out that the process of implementing an invalid law can never be fair (Frank, 2012). Substantive due process focuses on the term ‘law’ in the due process of law clause. It interprets the term to mean that any law should be constitutional to fulfill the conditions of the clause. When laws of states contravene various fundamental rights such as right to speech, privacy, movement, substantive due process deems these laws unfair and would not lead to justice (Scott, 2008). Therefore, substantive due process ensures that state legislature does not override government interests.

There is a raging debate over the substantive due process. Various parties seek to define which provisions of the Bill of Rights should be binding to the states – the incorporation debate. There is a long history of the debate of what provisions of the Bill of Rights should be incorporated into the due process of law clause protection as defined in the Fourteenth Amendment. The Supreme Court in Barrow v. Baltimore (1833) held that the Bill of Rights was not applicable to states. Since then, there have been various amendments to the constitution (Kanovitz, 2012). The Supreme Court has gradually made most rights in the first Eight Amendments binding to all states (Frank, 2012). However, the Supreme Court cannot obligate individual states to follow various government policies. The constitution give states the rights to have legislation that differs from national legislation. Residents of the specific state may vote to determine whether to incorporate certain legislation – such as abortion in the third trimester – into the state legislation.

Substantive due process helps to protect various fundamental rights of individuals. Fundamental rights are rights that are so important that a state should have compelling reasons in denying persons these rights. Fundamental rights are usually beyond the control of the government. Some fundamental rights include the right to marry, privacy, make healthcare decisions, and practice birth control. The Supreme Court puts certain spheres of an individual’s life beyond the control of an individual. Private sexual conduct is one of the areas that are beyond the control of the government. However, this does not include sex with minors. Substantive due process ensures that the government upholds an individual’s right to liberty (Kanovitz, 2012). Therefore, substantive due process permits consenting adults to engage in homosexual conduct without government intervention.

Substantive due process also helps to make government officials accountable for various forms of misconduct that the Constitution does not define adequately. However, substantive due process is only applicable in situations when holders of public office are guilty of extreme misconduct (Kanovitz, 2012). Courts can use substantive due process to make the police accountable for their actions.

Justice Black is one of the major people who have influence the legal definition of the due process clause. Justice Black was of the opinion that the Fourteenth Amendment incorporated all components of the Bill of Rights. Therefore, Justice Black was reluctant to allocate any right that was not in the Bill of Rights. Justice Black completely rejected the notion of substantive due process. He was mainly opposed to using the due process clause to protect substantive rights involving economic interests. Justice Black stated that the economic due process could strike down laws not because they contravened the Constitution, but because the laws were unfair (Frank, 2012). Therefore, Justice Black opposed the court’s open ended interpretation of the due process clause as it provided no limitation of the freedom of the courts in passing judgment on various constitution clauses. This increased risks of courts making erroneous decisions.

Griswold v. Connecticut is one of the cases that portray Justice Black’s stiff opposition to the substantive due process. Justice Black criticized the decision of various parties to negate a Connecticut law that prohibited the sale of contraceptives to married couples on the basis of the right to privacy that is enshrined in the constitution. According to Justice Black the Bill of Rights defines the rights to privacy that the constitution protects and which aspect should be left to the courts’ interpretation (Hall & Patrick, 2006).  According to Justice Black, the right to privacy is merely a vague judge-made goal and is liable to constant change.

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A majority of people were opposed to Justice Black’s opinion for total incorporation of the Bill of Rights in the due process clause. Justice Felix Frankfurter is one of the people who were vehemently opposed to Justice Black’s opinion. According to Justice Frankfurter, although the notion of the due process incorporates various fundamental rights, it was the duty of judges to apply these rights dispassionately and objectively whenever there is a petitioner’s claim for injustice (Regoli, Hewitt, & Maras, 2012). Therefore, Justice Frankfurter was of the opinion that the due process clause should incorporate selectively only provisions that were necessary for fundamental fairness.

Although Justice Frankfurter and Justice Black differed on various interpretations of the due process clause, they had a common view of the substantive due process. Federal Power Commission v. Natural Gas Pipeline Co. is one of cases that highlight this fact. In the case, the Supreme Court held that the decision of the Federal Power Commission (FPC) of fixing just and reasonable rates to the Natural Gas Pipeline did not violate the substantive due process rights of the Fifth Amendment. Both Justice Black and Frankfurter agreed with the Supreme Court’s decision (Keynes, 1996).


The due process clause is one of the major components of the Fifth and Fourteenth Amendment that ensures fairness of the judicial system. The due process clause ensures that state and federal legislation uphold the Bills of Rights. However, the definition of the due process clause is varied. Different interpretations of the due process clause by courts make them make conflicting decisions. 

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