Due Process

Historical Perspective

The concept of due process, or not arbitrarily depriving people of life, liberty, or property, can be traced back to the Magna Carta. Chapter 39 of the Magna Carta requires a trial by peers according to the law before punishment can be taken against a person. These provisions were further clarified by Sir Edmund Coke in 1628 in the Petition of Right. Coke expanded and clarified the protections in the Magna Carta by protecting against deprivation of life, liberty, and property without either parliamentary action or due process of law. Therefore, in the English context, due process protected against arbitrary action by the Crown.

As the American constitution was being drafted, the framers included the concept of due process to protect against arbitrary action by all branches and actors of the federal government. Due process is part of the Fifth Amendment, which also protects against self-incrimination, double jeopardy, and taking of property without compensation. In the context of the Fifth Amendment, the federal government is prevented from prosecuting and punishing criminal activity without fair proceedings that are in accordance with established legal practice. The U.S. Supreme Court has [Page 508]consistently applied the Fifth Amendment due process guarantees to actions by the federal, not state, government.

With its inclusion in the Fourteenth Amendment, due process, and through its interpretation other rights, were applied to actions by the state governments. As worded, the Fourteenth Amendment specifically requires states to follow the principles of fairness and legal process in the deprivation of life, liberty, or property. Thus, while the Fifth Amendment protects against arbitrary federal action, the Fourteenth Amendment protects against arbitrary state action. Yet the power of the Fourteenth Amendment's due process clause has been in its interpretation. The U.S. Supreme Court has interpreted due process in the Fourteenth Amendment to extend the protections in the Bill of Rights to actions by state governments.

This 1903 illustration titled “Due Process of Law” uses a figure representing justice riding a snail up a winding path to comment on the perceived slowness of the legal system caused by due process. The path is strewn with boulders labeled “certificate of reasonable doubt,” “appeals,” “change of venue,” “injunctions,” and “stays,” and ends at the “Hall of Justice” at the top of the hill.

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