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How important did America's Founding Fathers consider the concept of “due process of law?” Important enough that they made it the only right guaranteed twice by the U.S. Constitution.
Due process of law in government is a constitutional guarantee that actions of the government will not impact its citizens in an abusive manner. As applied today, due process dictates that all courts must operate under a clearly defined set of standards crafted to protect peoples' personal liberty.
Due Process of Law in the United States
The Constitution's Fifth Amendment adamantly commands that no person may be “deprived of life, liberty or property without due process of law” by any act of the federal government. Then, the Fourteenth Amendment, ratified in 1868, steps up to use exactly the same phrase, called the Due Process Clause, to extend the same requirement to the state governments.
In making due process of law a constitutional guarantee, America's Founding Fathers drew on a key phrase in the English Magna Carta of 1215, providing that no citizen should be made to forfeit his or her property, rights, or freedom except “by the law of the land,” as applied by the court. The exact phrase “due process of law” first appeared as a substitute for Magna Carta's “the law of the land” in a 1354 statute adopted under King Edward III that restated the Magna Carta's guarantee of the liberty.
The exact phrase from the 1354 statutory rendition of the Magna Carta referring to “due process of law” reads:
“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.” (emphasis added)
At the time, “taken” was interpreted to mean being arrested or deprived of liberty by the government.
'Due Process of Law' and 'Equal Protection of the Laws'
While the Fourteenth Amendment applied the Bill of Rights' Fifth Amendment guarantee of due process of law to the states it also provides that the states may not deny any person within their jurisdiction “the equal protection of the laws.” That's fine for the states, but does the Fourteenth Amendment's “Equal Protection Clause” also apply to the federal government and to all U.S. citizens, regardless of where they live?
The Equal Protection Clause was mainly intended to enforce the equality provision of the Civil Rights Act of 1866, which provided that all U.S. citizens (except American Indians) should be given “full and equal benefit of all laws and proceedings for the security of person and property.”
So, the Equal Protection Clause itself applies only to state and local governments. But, enter the U.S. Supreme Court and its interpretation the Due Process Clause.
In its decision in the 1954 case of Bolling v. Sharpe, the U.S. Supreme Court ruled that the Fourteenth Amendment's Equal Protection Clause requirements apply to the federal government through the Fifth Amendment's Due Process Clause. The Court's Bolling v. Sharpe decision illustrates one of the five “other” ways the Constitution has been amended over the years.
As the source of much debate, especially during the tumultuous days of school integration, the Equal Protection Clause gave rise to the wider legal tenet of “Equal Justice Under Law.”
The term “Equal Justice Under Law” would soon become the foundation of the Supreme Court's landmark decision in the 1954 case of Brown v. Board of Education, which led to the end of racial segregation in public schools, as well as dozens of laws prohibiting discrimination against persons belonging to various legally define protected groups.
Key Rights and Protections Offered by Due Process of Law
The basic rights and protections inherent in the Due Process of Law clause apply in all federal and state government proceedings that could result in a person's “deprivation,” basically meaning the loss of “life, liberty” or property. The rights of due process apply in all state and federal criminal and civil proceedings from hearings and depositions to full-blown trials. These rights include:
- The right to an unbiased and speedy trial
- The right to be provided with notice of the criminal charges or civil action involved and the legal grounds for those charges or actions
- The right present reasons why a proposed action should not be taken
- The right to present evidence, including the right to call witnesses
- The right to know the opposing evidence (disclosure)
- The right to cross-examine adverse witnesses
- The right to a decision based solely on the evidence and testimony presented
- The right to be represented by a lawyer
- The requirement that the court or other tribunal prepare a written record of the evidence and testimony presented
- The requirement that the court or other tribunal prepare written findings of fact and reasons for its decision
Fundamental Rights and the Substantive Due Process Doctrine
While court decisions like Brown v. Board of Education have established the Due Process Clause as sort of a proxy for a wide range of rights dealing with social equality, those rights were at least expressed in the Constitution. But what about those rights not mentioned in the Constitution, like the right to marry the person of your choice or the right to have children and raise them as you choose?
Indeed, the thorniest constitutional debates over the last half century have involved those other rights of “personal privacy” like marriage, sexual preference, and reproductive rights. To justify the enactment of federal and state laws dealing with such issues, the courts have evolved the doctrine of “substantive due process of law.”
As applied today, substantive due process holds that the Fifth and the Fourteenth Amendments requires that all laws restricting certain “fundamental rights” must be fair and reasonable and that the issue in question must be a legitimate concern of the government. Over the years, the Supreme Court has used substantive due process to emphasize the protections of the Fourth, Fifth and Sixth Amendments of the Constitution in cases dealing with the fundamental rights by constraining certain actions taken by police, legislatures, prosecutors, and judges.
The Fundamental Rights
The “fundamental rights” are defined as those having some relationship to the rights of autonomy or privacy. Fundamental rights, whether they are enumerated in the Constitution or not, are sometimes called “liberty interests.” Some examples of these rights recognized by the courts but not enumerated in the Constitution include, but are not limited to:
- The right to marry and procreate
- The right to have custody of one's own children and to raise then as one sees fit
- The right to practice contraception
- The right to identify as being of the gender of one's choice
- The right work at the job of one's choice
- The right to refuse medical treatment
The fact that a certain law may restrict or even prohibit the practice of a fundamental right does not in all cases mean that the law is unconstitutional under the Due Process Clause. Unless a court decides that it was unnecessary or inappropriate for the government to restrict the right in order to achieve some compelling governmental objective the law will be allowed to stand.