* Summary *

Copyright © 1998 by Barnabas D. Johnson

The phrase "due process of law" originated in a 1355 translation and restatement of the 1215 Magna Carta ("Great Charter"), by which "the government"in this case, King John of Emglandwas brought "under the law" … that is, became subject to something called "the law of the land" which he was not empowered to alter in its fundamental character. This is the origin of the concept of "government under law" as distinct from merely "government by laws" (see Rule of Law).

In effect, and as interpreted over the centuries, Magna Carta ordained that no person may be deprived of life, liberty, or property unless by a fundamentally rational law ("substantive due process") applied in a fundamentally fair proceeding ("procedural due process"). This is no longer only a "concept"; it is now enforceable lawand not merely in England, where it originated, but increasingly throughout our world.

Substantive due process requires all institutions and officers of "the government" (broadly defined) to make a well-informed, thoughtful determination of societal problems, etc., and then to seek to solve or otherwise address each problem in a rational or "proportional" way that, in essence, is not "overkill"is the "least restrictive approach" consistent with the nature of the problem being addressed. Note that in enacting or applying laws that restrict the most basic human rights such as freedom of thought and communication, the government must carry an especially heavy burden of proving that any restrictions will serve a compelling governmental interest.

Procedural due process requires that any significant deprivation of life, liberty, property, or any other basic rights will occur only following a fundamentally fair proceedingthat, not only must the law in question be rational and ascertainable, but also that the person accused of violating it shall be given (a) notice, (b) an opportunity to be heard (including the right to refute the accusations, ordinarily with the assistance of a lawyer), and (c) a trial before an impartial judge or judge-like tribunal, including an opportunity to appeal any initial judgment to a higher judicial authority that is completely independent from the government and can order the government to abide by the law as thus independently defined and applied.

The best simple definition of "due process of law" is fundamental rationality and fairness.

Go to Due Process of Law (full essay)

See Essay, Ordered Liberty

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