Due Process

It's Our Right

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. (Fifth Amendment, US Constitution; emphasis added)

You might have noticed that “due process” has been mentioned a lot lately. It seems to come up when its principles are being denied. The first mention of due process appears in the Fifth Amendment as part of our Bill of Rights. But the eleven words italicized above also appear in the Fourteenth Amendment.

Due process is a foundational principle in legal and constitutional frameworks. It ensures that individuals are treated fairly and justly by state and local governments. It safeguards us from an arbitrary denial of life, liberty, or property by means outside the boundaries of law. Like some other aspects of the rule of law in the United States, due process originated with English common law and evolved over time to become a vital cornerstone of democratic societies.

The Origin of Due Process

Due process goes back to the Magna Carta (Davis, 1995), which England’s King John signed in 1215. One of its most important clauses states that no free man shall be “taken or imprisoned or disseised or exiled or in any way destroyed . . . except by the lawful judgment of his peers or by the law of the land.” Over the years, the phrase “the law of the land” has evolved into the modern concept of due process.

The US version of due process first appeared in the Fifth Amendment, which was ratified in 1791. The amendment was designed to protect citizens from federal government overreach and to ensure that all legal procedures are followed before anyone is penalized. The amendment prohibits double jeopardy and self-incrimination. It requires the use of a grand jury for serious crimes and that the government pay “just compensation” if it takes private property for public use under eminent domain.

And most important for the purpose of this discussion, the Fifth Amendment states that the government must follow a fair process before depriving anyone of “life, liberty, or property.”

The phrase “deprived of life, liberty, or property, without due process of law” is next found in the Fourteenth Amendment. It was ratified in 1868 as one of the Reconstruction Amendments; the others are the Thirteenth and Fifteenth Amendments. Through the Due Process Clause, the first part of the Fifteenth Amendment, the principles introduced in the Fifth Amendment are extended to state governments, often through the Incorporation Clause (more about that later).

The Due Process Clause requires the government to respect everyone’s rights, guarantees, and protections required by the US Constitution and all applicable statutes before depriving anyone of their life, liberty, or property. Due process essentially guarantees that individuals will receive a fair, orderly, and just judicial proceeding regardless of the charge.

A Brief Side Trip

The Fourteenth Amendment also contains the Equal Protection Clause: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” In other words, there may be times when people are treated differently, but there must be a very good and justifiable reason for doing so. The Equal Protection Clause is often used in cases dealing with racial discrimination (e.g., Brown v. Board of Education), gender discrimination, LGBTQ+ rights (e.g., Obergefell v. Hodges, legalizing same-sex marriage), and unequal treatment in schools, voting, housing, and so on.

The Due Process Clause is used in cases dealing with legal fairness (e.g., the right to a fair trial, prior notice to a proceeding, and the right to a hearing), privacy and personal liberty (e.g., Roe v. Wade, Grisworld v. Connecticut), and incorporating Bill of Rights protections to the states.

Both clauses can be used together, especially when cases involve discrimination or personal liberties. For example, Loving v. Virginia involved an interracial couple who were arrested for marrying. In 1967, the Supreme Court struck down the conviction based on due process (the right to marry), and equal protection (racial discrimination). The Court’s ruling legalized interracial marriage throughout the country.

Procedural vs. Substantive Due Process

Due process is divided into two forms: procedural and substantive. Procedural due process deals with the hows of law enforcement and judicial procedures. It requires that individuals be given notice, an opportunity to be heard, and a fair decision-making process. For example, the Supreme Court in Goldberg v. Kelly (1970) ruled that anyone who receives welfare benefits must be given an evidentiary hearing before those benefits are cut off. In this manner, procedural due process ensures transparency and fairness in government actions.

Substantive due process deals with the whats of laws and government actions. It prevents government interference in our fundamental rights, regardless of the procedure used. Courts use substantive due process to evaluate whether the government has a valid reason for infringing on basic rights. Key cases in this area include Griswold v. Connecticut (1965), which recognized a right to privacy in marital relations, and Obergefell v. Hodges (2015), which recognized same-sex marriage as a fundamental right.

Incorporation

Let’s return to incorporation, the legal process by which the freedoms contained in the Bill of Rights are applied to the states. Recall that the Bill of Rights originally applied to the federal government and the Fourteenth Amendment to the states. However, by using the Due Process Clause of the Fourteenth Amendment, the freedoms contained in the Bill of Rights can be made applicable to the states.

Technically, there are two types of incorporation. We use selective incorporation in the United States. The Supreme Court chooses which rights to apply to the states on a case by case basis. The second type, total incorporation, exists in theory only. It suggests that every right included in the Bill of Rights should apply to states. However, it has not been fully adopted.

Among rights that have been extended to the states are Gitlow v. New York, 1925 (applied free speech to the states), and Gideon v. Wainwright, 1963 (the right to a lawyer in all criminal cases).

Due Process Issues Today

As I noted at the start, due process issues seem to be on the news every day. Usually multiple times. One of the biggest due process issues today involves immigration, especially detention and deportation. According to the Constitution, noncitizens— including undocumented ones—have the right to due process. This includes a fair hearing before deportation and the notice of charges with a chance to respond. They also have the right to legal representation, but government payment of those fees is not guaranteed.

Technology and privacy is another area being scrutinized regarding due process. Some critics claim that government collection of personal data is against due process rights.

What if a public official blocks you on a social media site, such as Facebook or X (formerly known as Twitter)? Does that violate due process? No one knows for sure. Some courts have ruled it could be because social media can be considered and used as a public forum.

What about health care and body autonomy? When Roe was overturned by the Dobbs v. Jackson Women’s Health Organization in 2022, President Trump said he was sending abortion back to the states. It’s true, states now have more control over abortion. As a result, more extreme laws regarding abortion availability, such as no exceptions for rape/incest or even a nonviable pregnancy, are being challenged as violations of the Due Process Clause of the Fourteenth Amendment.

Courts are also looking at vaccine mandates. Among the information they are studying is whether the government uses fair procedures and rational justifications to make their decisions about any mandates or recommendations being considered or issued.

Conclusion

Due process is about fairness. The Founders gave people rights, and the government can’t take them away without following a fair and legal process—due process. At times, it may seem that the government is acting like a bully. And goodness knows the concept of fairness and whether due process is being followed is and should be discussed. It is our right, and we must use it or we’ll possibly lose it.

References

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

Davis, G. R. C. Magna Carta, revised edition. British Library, 1989.

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).

Gideon v. Wainwright, 372 U.S. 335 (1963).

Gitlow v. New York, 268 U.S. 652 (1925).

Goldberg v. Kelly, 397 U.S. 254 (1970).

Griswold v. Connecticut, 381 U.S. 479 (1965).

Loving v. Virginia, 388 U.S. 1 (1967)

Obergefell v. Hodges, 576 U.S. 644 (2015).

Roe v. Wade, 410 U.S. 113 (1973).