Due Process of Law

Imagine for a moment that you live in a country where the following conditions are true:

  • Your home, property, and body can be searched for any reason at any time.
  • Authorities may use any means necessary to force information from you if they suspect you of a crime.
  • You may be jailed indefinitely, never having been told what you were accused of, or given a chance to defend yourself.
  • If a trial is offered, a lone judge, in secret, determines your guilt and then authorizes cruel punishment.

While the vast majority of Americans are generally law-abiding citizens, most of us will eventually run afoul of the law, perhaps for something as minor as a traffic infraction. Would treatment such as that described above be fair?

Thankfully, America is guided by the principle of due process of law. The government must follow duly-enacted laws when it seeks to restrict or deny fundamental rights, including a person’s rights to life, liberty or property. In essence, it means that government must treat its citizens fairly by following laws and established procedures in everything it does. Due process is not a particular right in and of itself. Rather, it is a blend of rights, customs, procedures, and legal traditions that have evolved over the centuries alongside our modern understanding of the requirements of the concept of “justice.”

Thankfully, America is guided by the principle of due process of law. The government must follow duly-enacted laws when it seeks to restrict or deny fundamental rights, including a person’s rights to life, liberty or property. In essence, it means that government must treat its citizens fairly by following laws and established procedures in everything it does. Due process is not a particular right in and of itself. Rather, it is a blend of rights, customs, procedures, and legal traditions that have evolved over the centuries alongside our modern understanding of the requirements of the concept of “justice.”

Most persons in the United States would consider due process quintessentially American. However, the concept of due process of law, and many of the individual rights that are associated with it, evolved from English law. In 1215, King John was forced to accept limitations to his prerogatives in the Magna Carta. These limitations redefined the relationship between the king and the barons, and granted a body of rights and protections to the nobles that would, over time, become deeply rooted in English common law. For example, the king could not financially punish a freeman “for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be [fined] in accordance with the gravity of the offense…” To Americans, this ancient right is associated with the principle that “the punishment must fit the crime.” King John also agreed not to seize land to pay for debts, not to take life or liberty without due process or compensation, not to delay court proceedings or punish without testimony from witnesses, nor to issue excessive punishments.

Over the next four centuries, the provisions of the Magna Carta became embedded in English common law and protected the rights of all free Englishmen. In 1628, however, King Charles I arbitrarily dissolved Parliament and ruled England entirely by royal prerogative. The Petition of Right, a Parliamentary response to the king’s actions initiated by Sir Edward Coke, reaffirmed the principle that rights stem from the law, and that the king is not above the law. It denounced the king for denying due process, unjustly seizing property, denying trials by jury, and excessively punishing the guilty.

While the Petition of Right did not assert any new rights for Englishmen, it advanced the notion that due process required adherence by government to the rule of law. Four decades later, in 1689, monarchs William and Mary accepted – as a condition of their rule – the English Bill of Rights. This document cemented the English tradition of demanding that laws be followed, and it did so in ways that would directly influence America’s Founding nearly one hundred years later. It contained specific protections for property and liberty for the accused and even for those persons found guilty.

It is this rich tradition of due process and respect for the rule of law that American colonists would draw on as justification for the American Revolution and then enshrine in the U.S. Constitution and the Bill of Rights.

While the Constitution, in its entirety, uses the phrase “due process of law” only twice (as a protection applied against actions by the national government in the Fifth Amendment and as a protection applied against state government actions in the Fourteenth Amendment), the principle of due process is woven throughout the document. Within the main body of the Constitution, Article I, Section 9, for example, protects persons from arbitrary suspension of the ancient writ of habeas corpus. Latin for “you have the body,” a writ of habeas corpus requires that the government prove its detention of an individual is lawful by delivering the accused to a magistrate [judge] for such determination. Article I, Sections 9 and 10 also prevent bills of attainder, or a legislative pronouncement of guilt without trial, and ex post facto laws, or criminal laws that apply retroactively. Additionally, Article III, Section 2 requires that all crimes, save impeachments, be tried by a jury, and Article III, Section 3 specifically defines treason and the criteria for determining guilt in treason cases.

The most numerous and most well-known due process protections, however, are found in the Bill of Rights. Indeed, nearly half of the Bill of Rights is devoted to the requirements of due process throughout the three stages of law enforcement: accusal, determination of guilt, and punishment.

In the first stage, accusal, the Fourth Amendment ensures that government must follow the law when gathering evidence and/or seeking to accuse an individual of having committed a crime. Specifically, it prevents unreasonable (i.e., warrantless) searches and seizures of an individual’s body, home, correspondence, or possessions. Requiring that law enforcement officials demonstrate or establish probable cause before a judge will issue a specific, detailed warrant, the Fourth Amendment essentially prevents the government from running rough-shod over individuals. Further, evidence gathered as a result of questionable or illegal government conduct may be disallowed by a judge at trial and left unheard by a jury, under a doctrine of the Fourth Amendment known as the “Exclusionary Rule.”

The Fifth and Sixth Amendments provide a myriad of due process protections throughout the second stage of law enforcement: the determination of guilt. Some have become popularly known to Americans as “Miranda Rights,” (Miranda v. Arizona, 1966), guaranteeing the right to remain silent (self-incrimination, Fifth Amendment) and the right to an attorney even if a person cannot afford one (assistance of counsel, Sixth Amendment). Others may not be as well-known, but they collectively embody the very heart of due process: charges brought by a grand jury of citizens in cases where death may be a punishment (Fifth Amendment); protection from double jeopardy, or being tried for the same crime twice (Fifth Amendment); the guarantee of a speedy and public trial in the location of the alleged crime by a jury of one’s peers (Sixth Amendment); a requirement that a person be informed of the charges (Sixth); and the right to confront one’s accusers and to call witnesses in one’s defense (Sixth Amendment).

Handcuffs
The Fifth and Sixth Amendments provide a myriad of due process protections throughout the second stage of law enforcement: the determination of guilt.

Lastly, the Eighth Amendment extends due process to those who have been found guilty and find themselves in the third stage of law enforcement: punishment. Consistent with the principle that “the punishment must fit the crime,” the Eighth Amendment prohibits government from imposing wildly disproportionate financial penalties, such as a $500,000 fine for petty theft, or carrying out cruel and unusual punishments, such as drawing and quartering.

In short, while an individual’s life, liberty, and property can be restricted or denied, the government must satisfy principles of law designed to ensure that all persons are treated justly.

While the due process rights enshrined in the United States Constitution are meant to protect the innocent and promote the fair administration of justice, some persons believe that at least some of these rights have been interpreted too broadly, tipping the legal balance in favor of society’s worst criminals. Under the Exclusionary Rule of the Fourth Amendment, for example, evidence of guilt may be inadmissible due to technicalities that are unclear to police officers. Other persons argue that the Miranda Rule may obstruct interrogation of suspects, as the prosecution must prove that the suspect was both fully aware of, and voluntarily waived, his/her right to remain silent and to have a lawyer present during all police questioning. Still other persons question the wisdom of recent Supreme Court rulings declaring the death penalty or mandatory life sentences for anyone under the age of 18, regardless of crime, to be violations of the Eighth Amendment’s prohibition of cruel and unusual punishments.

John adams
It is the commitment to this principle that makes the United States, as John Adams once noted, “a government of laws, and not of men.”

Political controversy concerning due process guarantees is to be expected in a rights-oriented republic. In the end, steadfast protection of rights for those accused of crimes serves to protect us all. It is the commitment to this principle that makes the United States, as John Adams once noted, “a government of laws, and not of men” (John Adams, Novanglus; Or, A History Of The Dispute With America From Its Origin, In 1754, To The Present Time, 1775).

Test Your Knowledge

  1. Question 1 of 3

    Which of these documents helped inform development of the principle of due process of law in the United States Constitution?

  2. Question 2 of 3

    Most of the due process protections listed in the United States Bill of Rights deal with fair application of the law to people in which situation(s)?

  3. Question 3 of 3

    John Adams wrote that the United States Constitution provides the United States with is “a government of laws, and not of men.” Which of the following best expresses his meaning?

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Law of Demand
As prices decrease, the quantity demanded increases or as prices increase, the quantity demanded decreases.
Natural rights
Rights which belong to us by nature and can only be justly taken away through due process.
Inalienable rights
Rights which belong to us by nature and can only be justly taken away through due process.
Liberty
Except where authorized by people through the Constitution, government does not have the authority to limit freedom.
Popular sovereignty
The power of government flows from the people.
Separation of powers
A system of distinct powers built into the constitution, to prevent an accumulation of power in one branch.
Checks and balances
Powers distributed among the branches of government allowing each to limit the application of power of the other branches and to prevent expansion of power of any branch.
Federalism
The people delegate certain powers to the national government, while the states retain other powers; and the people, who authorize the states and national government, retain all freedoms not delegated to the governing bodies.
Justice
Fairness or reasonableness in the way people are treated or decisions are made.
private property
The natural right of all individuals to create, obtain, and control their possessions, beliefs, faculties, and opinions, as well as the fruits of their labor.
limited government
Citizens are best able to pursue happiness when government is confined to those powers which protect their life, liberty, and property.
representative government
(or republican government) Form of government in which the people are sovereign (ultimate source of power) and authorize representatives to make and carry out laws.
republican government
(or representative government)Form of government in which the people are sovereign (ultimate source of power) and authorize representatives to make and carry out laws.
civil discourse
Reasoned and respectful sharing of ideas between individuals is the primary way people influence change in society/government, and is essential to maintain self-government.
Constitution
The fundamental principles by which a state or nation is governed. The United States Constitution, written in 1787, lays out the roles and powers of each of the three branches of government (legislative, executive, and judicial), the protections of due process and rule of law in the states, a republican form of government, and the manner in which to amend the document.
Thomas Jefferson
Jefferson was a Virginia plantation owner who was the principle author of the Declaration of Independence. Jefferson served as a legislator and governor in Virginia, as well as an ambassador to France, Secretary of State under George Washington, Vice President under John Adams, and the third President of the United States. During his political career, Jefferson founded the Democratic-Republican Party with James Madison, and he bought the Louisiana Purchase from France. After his presidency, Jefferson started the University of Virginia near his home, Monticello.
Bill of Rights
The first ten amendments to the Constitution, ratified in 1791, which limit government power and protect individual liberties, including the freedoms of speech, press, religion, petition, and assembly, as well as protections against cruel and unusual punishment, unreasonable search and seizure, and other due process rights.
Second Amendment
Ratified in 1791, it protects citizens’ rights to create a militia and to bear arms. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
Due Process
The government must interact with all persons according to the duly-enacted laws; applying these rules equally among all persons.
Equality
Every individual is equal to every other person with respect to natural rights and treatment before the law.
Consent of the governed
The authority of the government must come from the people through elections and through the people’s interaction with government.
Individual responsibility
Individuals must take care of themselves and their families, and be vigilant to preserve their liberty and the liberty of others.
Rule of law
Government officials and citizens all abide by the same laws regardless of political power.
Declaration of Independence
The document written in 1776 by the Founders to send to Britain’s King George III in which independence from Britain was declared and the reasons for the separation were explained.
Articles of Confederation
The first national government document developed in 1781 by the Founders. The Articles created a federal legislative branch, but there was no executive or judiciary. The states retained most of the governmental powers.
Founders
The group of people who wrote and influenced the Declaration of Independence, the Articles of Confederation, the United States Constitution, and the United States Bill of Rights. These men were instrumental in establishing the nation and its governmental documents and practices.
Federalist Papers
A series of 85 essays written to convince the people of New York to ratify the Constitution. The authors were James Madison, Alexander Hamilton, and John Jay. These documents are considered to be the most authoritative explanation of the political theory of the Constitution.
First Amendment
Ratified in 1791, it protects the freedom of speech, the freedom of religion, freedom of the press, freedom to assemble, and freedom to petition the government. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Law of Supply
As the price drops, the quantity supplied also drops.
Fourth Amendment
Ratified in 1791, it protects citizens’ rights against unreasonable searches and seizures of property and explains that warrants must be issued with probable cause. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Fifth Amendment
Ratified in 1791, it protects the right indictment by a jury, against double jeopardy, self-incrimination, loss of life, liberty, or property without due process, and just compensation for private property taken for public use. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Tenth Amendment
Ratified in 1791, it states that the powers not enumerated or delegated in the Constitution are reserved for the states and the people. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Eighth Amendment
Ratified in 1791, it protects against excessive bail and fines and cruel and unusual punishments. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Ninth Amendment
Ratified in 1791, the listing of certain rights protected by the Constitution cannot be used to deny rights not enumerated in the document. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Alexander Hamilton
One of the Founding Fathers of the United States, Alexander Hamilton served as General Washington’s chief of staff, promoted the ratification of the Constitution in the Federalist Papers, and founded the nation’s financial system and first political party.
James Madison
Madison was a Framer who was instrumental in writing the Constitution and Bill of Rights. He is known as the “Father of the Constitution.” Madison partnered with Alexander Hamilton and John Jay to write the Federalist Papers in support of the ratification of the Constitution. He also served as a member of the Virginia House of Delegates, the United States House of Representatives, Secretary of State under Thomas Jefferson, and the fourth president of the United States.
George Washington
First President of the United States, George Washington served as commander-in-chief of the Continental Army during the American Revolution and was one of the Founding Fathers of the United States.
John Locke
An English philosopher and physician, John Locke was one of the most influential Enlightenment thinkers and is known today as the Father of Classical Liberalism.
Continental Congress
The Continental Congress, comprised of delegates from 12 of the 13 American colonies, represented the colonists during and after the American Revolution. The Continental Congress issued the Declaration of Independence and ratified the Articles of Confederation.
King George III
King George III was the King of Great Britain at the time of the American Revolution. His actions towards the American colonies, outlined in the Declaration of Independence, spurred the American Revolution.
Great Depression
Spanning ten years from 1929 to 1939, the Great Depression was one of the longest-lasting economic downturns in the history of the United States affecting the U.S. and most of the world.
Preamble
An introductory statement, preface, or introduction.
Tyranny
Cruel and unfair treatment by people with power over others.
Tyrannical
Using power over people in a way that is cruel and unfair.
John Adams
Before becoming the second President of the United States, John Adams served as the country’s first Vice President under George Washington. Adams was an advocate of American independence from Britain and a Federalist.
John Jay
Founding Father John Jay was one of the signers of the Treaty of Paris and served as the first Chief Justice of the United States. He was also one of the authors of the Federalist Papers.
Third Amendment
Ratified in 1791, it protects citizens against the quartering of soldiers in private homes without their approval. “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”
Sixth Amendment
Ratified in 1791, it protects the rights of impartial jury trials, the right to be informed of the accusations against you, the right to be confronted by witness, and the right to be assisted by counsel. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Seventh Amendment
Ratified in 1791, it protects the right of jury trials in law suits dealing with more than twenty dollars and protects against reexamination of the trial in any court if decided by a jury. “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”
Alexis de Tocqueville
French political thinker and historian, Alexis de Tocqueville is best known for his works Democracy in America and The Old Regime and the Revolution. He visited the U.S. in the 1830s and wrote admiringly about many aspects of American law and society.
Democracy in America
Written by Alexis de Tocqueville after visiting the United States, Democracy in America contains de Tocqueville’s analysis of and reflections on the United States’ democratic system and society. The first volume was published in 1835 and the second in 1840.
Magna Carta
Written in 1215, it is the oldest document in the British and American heritage of rights. Contributed to the adoption of the First, Third, Fourth, Fifth, Sixth, and Eighth Amendments of the Bill of Rights, and speaks of these rights as ancient.
Two Treatises of Civil Government
Written by John Locke in 1690, the Two Treatises of Civil Government criticize absolute power for kings and outline Locke’s suggestions for a more civilized society based on natural rights and the social contract.
Thirteenth Amendment
The Thirteenth Amendment to the Constitution abolished slavery and involuntary servitude, except as punishment for a crime. “Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.”
Framers
The group of people who actually attended the Constitutional Convention and participated in writing the Constitution.
Fourteenth Amendment
Ratified in 1868, it states that all people born or naturalized in the United States are citizens and ensures that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Sixteenth Amendment
Ratified in 1913, the Sixteenth Amendment gave Congress the ability to collect income taxes. “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census of enumeration.”
Eighteenth Amendment
atified in 1919, the Eighteenth Amendment introduced Prohibition, the period of United States history when the manufacture, sale, and transportation of alcohol was made illegal throughout the country. “Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.”
Twentieth Amendment
The Twentieth Amendment was ratified in 1933, and it establishes procedures for presidential succession and the start and end of federal officials’ terms of office. “Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
Twenty-First Amendment
In 1933, the Twenty-First Amendment repealed the Eighteenth Amendment, ending Prohibition. “Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Section 2. The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.”
English Bill of Rights
Passed by the British Parliament in 1689, the English Bill of Rights limited the power of the British monarch, outlined the rights of the Parliament, and guaranteed Protestants the right to bear arms.
Parliament
The legislative body of the United Kingdom (known as Great Britain or England during the Founding era).
Benjamin Franklin
One of the Founding Fathers of the United States, Benjamin Franklin was a statesman, author, publisher, scientist, inventor and diplomat. He served in the Second Continental Congress during the American Revolution and helped draft the Declaration of Independence. In addition, Franklin helped negotiated the Treaty of Paris which ended the Revolutionary War and later served as a delegate to the convention that produced the U.S. Constitution.
Suffrage
The right to vote.
Republic
A government in which the power belongs to citizens through the right to vote.
Fifteenth Amendment
Ratified in 1870, it states that the right could not be restricted based on “race, color, or previous condition of servitude.” “Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.”
Seventeenth Amendment
Ratified in 1913, the Seventeenth Amendment introduced direct election of Senators. “The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures. When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.”
Nineteenth Amendment
Ratified in 1920, the amendment stated that a citizen’s right to vote must not be restricted based on gender. “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have power to enforce this article by appropriate legislation.”
Direct Democracy
Direct democracy is a political system in which the people vote directly on policies or laws, as opposed to voting for representatives who enact laws on their behalf.
Arbitrary
Not planned or chosen for a particular reason; done without concern for what is fair or right.
Judicial Review
The process by which courts analyze the constitutionality of an act of government.
Majority rule/minority rights
laws may be made with the consent of the majority, but only to the point where they do not infringe on the inalienable rights of the minority.
Fiat
An arbitrary order or decree.
Property
Something that is owned by a person, business, etc. This includes possessions, beliefs, faculties, and opinions, and the fruits of one's labor.
Democracy
A government in which the power is held by the people.
Electoral College
A body of electors chosen by each state to vote for the president and vice president of the United States.
Virtue
Conduct that reflects universal principles of moral and ethical excellence essential to leading a worthwhile life and to effective self-government. For many leading Founders, attributes of character such as justice, responsibility, perseverance, etc., were thought to flow from an understanding of the rights and obligations of men. Virtue is compatible with, but does not require, religious belief.