Due Process

1. Due Process The Fifth and Fourteenth Amendments bar the government from depriving anyone of "life, liberty, or property, without due process of law.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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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