Due Process

Like Magna Carta, the first American state constitutions as well as the Northwest Ordinance (1787), which applied to governance of U.S. territories (see Territory), referred to due process as “the law of the land.” But the original Constitution drafted in 1787 did not contain either that phrase or the phrase “due process of law,” although certain provisions—including the prohibition against ex post facto laws, bills of attainder (see Attainder, Bills of), and interference with contracts as well as guarantees of trial by jury (see Juries), habeas corpus, and equal status for all citizens in the several states—reflect the concept. Due process was finally explicitly guaranteed in both the Fifth (1791) and the Fourteenth (1868) Amendments. “No person shall be…deprived of life, liberty, or property, without due process of law…,” declares the Fifth Amendment. The Fourteenth Amendment states in part: “nor shall any State deprive any person of life, liberty, or property, without due process of law….” In general, due process in the earlier amendment was to apply to the federal government, whereas in the later amendment it was to be extended to the states.

The evolution of the Constitution’s due process provisions through court decisions is analogous to the growth of a tree. The roots are embedded in the common law of England and the early English colonies in America. The trunk represents the Constitution, and its major branches are the rights guaranteed by the Bill of Rights (1791), with the Fifth Amendment and later the Fourteenth Amendment significant offshoots. Grafted onto the Fourteenth Amendment limb are portions of the due process guarantees in the Bill of Rights.

In Murray’s Lessee v. Hoboken Land and Improvement Co. (1855), the Supreme Court defined due process to include legal procedures that did not conflict with the Constitution’s prohibitions or with the accepted practices in England at the time the colonies were established. Although the Court had earlier reasoned that the guarantees of the Bill of Rights were not applicable to the states, ratification of the Fourteenth Amendment in 1868 changed that view. In Allgeyer v. Louisiana (1897), the Court held that a state law fining anyone for insuring property in the state with a company that had not complied with state law—in this case, a New York company—was an unconstitutional interference with the Fourteenth Amendment’s protection of liberty. “The liberty mentioned in [the Fourteenth Amendment],” noted the Court, “means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.”

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