Due Process
The Fifth and Fourteenth Amendments
bar the government from depriving
anyone of "life, liberty, or property,
without due process of law.
It is well-known that the federal Due Process Clause has
its origins in the "law of the land" clause of Magna Carta.
The Due Process Clause refers to a process of law that is
owed to a person according to "the law of the land,"
rather than according to some different set of principles
or beliefs. This interpretation of the Due Process Clause
follows not just from an original analysis of how the
Framers felt, what they expected, and where they got
their ideas; it also follows from the meanings that they
attached to the words they used in the Due Process
Clause, as well as the place of the Due Process Clause in
the overall structure of the Bill of Rights and Constitution.
When the New York ratification convention
first proposed the "due process" language for
inclusion in the federal Constitution in 1788,
that state's constitution already contained a
clause along the lines of Magna Carta: "no
member of this State shall be disfranchised,
or deprived of any the rights or privileges
secured to the subjects of this State by this
constitution, unless by the law of the land, or
the judgment of his peers.
Incorporation
The Fifth Amendment's reference to “due process” is only one of many
promises of protection the Bill of Rights gives citizens against the federal
government. Originally these promises had no application at all against the
states. Did the Fourteenth Amendment change that? In the middle of the
Twentieth Century, about a century after its adoption, a series of Supreme
Court decisions found that the Due Process Clause "incorporated" most of the
important elements of the Bill of Rights and made them applicable to the
states. These decisions almost obliterated any difference between the Bill of
Rights and the Fourteenth Amendment. If a Bill of Rights guarantee is
"incorporated" in the "due process" requirement of the Fourteenth
Amendment, state and federal obligations are exactly the same. The right to a
jury trial, to take just one example, means the same in state and federal
courts; there are no differences about the number of jurors required,
whether they have to be unanimous in their verdicts, and so forth.
Equal Protection of the Laws.
If the courts stretched Fourteenth Amendment “due
process” to apply the Bill of Rights to the states, they
stretched Fifth Amendment “due process” to require the
federal government to afford equal protection of the laws.
The Equal Protection Clause of the Fourteenth Amendment
forbids the states from establishing segregated schools or
otherwise discriminating invidiously against some of their
citizens. There is no equal protection clause in the Bill of
Rights. In a case involving segregation in the schools of
Washington, D.C., which as the nation's capital is a federal
enclave governed by federal law, the Supreme Court found
that the Due Process Clause operates against the federal
government just as the Equal Protection Clause does
against the states.
In general, substantive due process prohibits
the government from infringing on
fundamental constitutional liberties. By
contrast, procedural due process refers to the
procedural limitations placed on the manner
in which a law is administered, applied, or
enforced. Thus, procedural due process
prohibits the government from arbitrarily
depriving individuals of legally protected
interests without first giving them notice and
the opportunity to be heard.
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