The Concept of Due Process

Due Process

Due process is a legal principle that prevents the government from removing a person's basic rights without proper notice, opportunity to be heard, and fair treatment. This protection is guaranteed in the Constitution's Fifth and Fourteenth Amendments, which prohibit any deprivation of life, liberty, or property without due process.

Historically, the concept of due process derived from clause 39 of the Magna Carta in England, which declared that no free man could be seized or imprisoned except under the law of the land or by the lawful judgment of peers. The concept of due process was later incorporated into the US Constitution, establishing the constitutional rights that we enjoy today.

Procedural Due Process

The most basic due process requirement is that the government must provide adequate notice and opportunity to be heard before it can deprive a person of their life, liberty, or property. This includes a chance to be tried by a jury of peers or to have an appeal. It also means that the accused has the right to a fair trial by a judge with no direct, personal, substantial, pecuniary or other disqualifying interest in the case.

Substantive Due Process

A more rigorous judicial scrutiny is required when enactments seek to regulate fundamental rights. These enactments must be subjected to a more intense balancing test, known as the compelling interest test. The compelling interest test asks whether the enactment is a reasonable response to a legitimate public need and whether the state can point to any conceivable benefit from the enactment.

In the late nineteenth century, the Supreme Court began to apply this concept in its interpretation of state laws that violated a citizen's economic freedoms. In cases like Allgeyer and Lochner, the Court held that state laws that required the holder of an insurance policy to pay an administrative fine for failing to meet certain requirements did not satisfy the Due Process Clause.

As the concept of substantive due process became more widely understood, courts began to interpret it in more concrete terms. The concept of substantive due process now encompasses a broad range of relationships between individuals and the government. This includes, but is not limited to, licenses, government jobs protected by civil service, and places on welfare rolls.

For instance, Norma Constantineau, who was arrested for drinking too much alcohol, successfully challenged the Wisconsin law that allowed the police chief to identify her as an "excessive drinker." The Court held that she was entitled to a hearing before being listed on the list, and therefore, the law failed to comply with the Due Process Clause.

The Supreme Court has interpreted this concept in a wide variety of ways. Some decisions have found that a high-speed pursuit by police does not violate the due process rights of suspects, while others have held that an accused is entitled to a complete and meaningful defense at trial or that failure to disclose evidence favorable to the defendant violates the due process clause.