Copyright © Barnabas D. Johnson
The phrase “due process of law” originated in a 1354 translation from Latin and restatement in English of the 1215 Magna Carta, by which for the first time in history (at least in relation to the rights of an emergent citizenry) “the government” — in this case, King John of England — was 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. [1] This is the origin of the concept of “government under law” as distinct from merely “government by laws”; that subject is explored in my essay, Rule of Law.
Here is a good English translation of the original Latin text of the all-important Articles 39 and 40; they remain operative constitutional law in England:
“No Freeman is to be taken or imprisoned or disseised [deprived] of his Freehold, or Liberties, or free Customs, or outlawed or exiled or in any way ruined; nor will we go against such a man or send against him save by lawful judgment of his Peers or by the Law of the Land. To no one will we sell or deny or delay Right or Justice.”
In effect, and as interpreted over the centuries, Magna Carta and subsequent restatements — including two “due process clauses” in the Constitution of the United States (its Fifth and Fourteenth Amendments) — have ordained that no person may be deprived of life, liberty, property, or other fundamental rights, privileges, immunities, and entitlements (see Ordered Liberty) except by a fundamentally rational law (“substantive due process”) applied in a fundamentally fair proceeding (“procedural due process”).
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Due-process jurisprudence is highly context-specific. Remember, the map is not the territory, the blueprint is not the house, and a constitutional democracy is a “res” (thing) whose life evolves through living-and-learning. It is a “public thing” (res publica), and every generation must work to understand what that means … and what this meaning requires. A “democratic republic” or “republican democracy” is a verb, an experiment, an evolving enterprise. As I have argued elsewhere in these writings, that experiment “is” (Sansktrit asme, “breathes”) the enterprise of integrative jurisprudence, integrating what we know with what we do.
See “Original Meaning” of the Constitution.
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No law is worth anything unless it includes remedies. A court has to be able to order an official, government agency, or others to stop depriving individuals or groups of their liberties and resulting due-process rights. The exact nature of those rights and remedies is the subject of a vast and growing literature, including thousands of judicial opinions focused on defining what “due process of law” means in every particular … and of whom it may be claimed. This concept is not self-defining, and new circumstances require courts to refine their case law (called “jurisprudence” in some countries) and thereby keep “government under law” alive and healthy.
A healthy constitutional democracy requires a critical mass of citizens to support balancing and integrating rights, immunities, privileges, and entitlements that often collide. One person’s right to free speech can collide with another’s right to privacy. The rights of parents to raise their children according to their religious beliefs can collide with their child’s right to a life-saving blood transfusion. The right to self-defense is encompassed within contrasting or competing rights, including our self-evident right to empower and rely on a government that limits or modifies what a person may do in the name of self-defense.
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Understanding Due Process of Law includes understanding the interesting fact that England, as distinct from the United States, has developed its due-process jurisprudence without much use of the phrase itself, and the European Union is developing a parallel jurisprudence under that and other terms, including “proportionality”; again, the map is not the territory. Suffice it to say that during the past half century the jurisprudence regarding the fundamentals of fair and rational law has developed based on contributions from many sources.
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Although the requirements of rationality and fairness are complicated and even controversial, partly because the meaning of “due process of law” has evolved over many centuries and is still evolving, the task of securing and maintaining a healthy “law of the land” (for all countries and for our entire planet, including the oceans, and perhaps, in due course, “outer space” also) challenges us to state these requirements as clearly and simply as possible:
Substantive due process requires governments (broadly defined to include all legislative, executive, and judicial officers and institutions) to make thoughtful and informed determinations of societal problems and opportunities, etc., and then — if and when making laws to address these subjects — to do so in a rational or “proportional” way that is not “overkill” and does not restrict basic rights without compelling reasons. When making laws that curtail the most fundamental of human rights, such as freedom of inquiry and expression, governments must carry an especially heavy burden of proving that their curtailments are the least-restrictive possible, given the governmental necessity to adequately address a compelling public interest. Some lawyers and scholars devote their lives to debating and refining the intricacies of evolving law regarding these matters. All countries have to get better at finding “least restrictive alternatives” — only what is both necessary and proper — when regulating fundamental liberties and balancing competing rights.
Rationality includes the standards set forth in Rule of Law. For example, “the law of the land” must be knowable — setting forth ascertainable standards of conduct — and must not command absurd or impossible conduct. Rationality also includes the harder-to-define standards set forth in Rule of Reason, including the methods of legal reasoning so central to making and applying “law-based law” and thereby doing justice.
Procedural due process cannot be understood in isolation from substantive due process. For example, the U.S. Constitution’s “Equal Protection Clause” — a key element of law-based governance and hence of “due process” properly understood — includes both substantive and procedural elements. Indeed, the focus of procedural due process is to ensure that laws which conform to substantive standards of rationality and justice are also applied properly and fairly. Liberty bounded and secured by justice is the focus of that “law of the land” which is due — is owed — in its many particulars — to all; and justice necessarily includes substance and procedure … often profoundly intertwined.
Procedural due process requires that any deprivation of life, liberty, property, or other basic rights will occur only following a fundamentally fair proceeding. The elements of such a proceeding include (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.
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As indicated, there is a vast literature on this subject. Above, I propose a “definition” that is not, in fact, accepted by many scholars (let alone all courts) in our world, or even — for example — in the United States. Indeed, this topic includes numerous points of deep disagreement, all of which go to the heart of why this website exists. Because this subject is so crucial, I will in due course offer further essays which examine in detail the major areas of disagreement among scholars regarding the history, meaning, and current jurisprudence relating to the due process of law.
Yet, let there be no doubt: The above “brief statement” on this topic provides the best and most authoritative introduction, I believe, aimed at illuminating this topic for the interested, informed citizen … whether of the United States or of our world.
The phase “due process of law” is one of the deepest and most beautiful phrases of our emerging global culture. Understanding what it means should be every enlightened citizen’s responsibility.
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[1] First, Magna Carta was preceded by the Charter of Liberties (or “Coronation Charter”) of 1100, by which Henry I of England limited his powers over church officials and the “nobility” (dukes, barons, etc.). Second, an important document in the evolution of Due Process of Law was the 1628 Petition of Right, which was greatly influenced by the former Attorney General and Chief Justice, Edward Coke, who asserted that not only the king but also the parliament (and all acting under “color of law”) were subject to the fundamentals of the common law. The concept “common law” is a term of art, referring to something that was understood to have “evolved” long before that phrase was coined; its continuing evolution was a fundamental element in the “presumption of liberty” undergirding English law. See Privileges and Immunities: Rights Imply Remedies. The following passages from the Petition of Right are especially significant.
III. And whereas also by the statute called ‘The Great Charter of the Liberties of England,’ [Magna Carta] it is declared and enacted, that no freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.
IV. And in the eight-and-twentieth year of the reign of King Edward III, it was declared and enacted by authority of parliament, that no man, of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disinherited nor put to death without being brought to answer by due process of law. (Go back)
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See Due Process of Law and Criminal Procedure
See Due Process of Law Reconsidered
Go to List of Jurlandia Writings
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