DUE PROCESS IN LAW
A generalized and regular procedure becomes estab-
lished in man's historical and cultural life when hunters
who cooperate, or the governing institutions, demand
minimum standards of such procedural conduct for all.
Whenever, at some point in his history, man claimed
as his “due” that substance or property to which he
was rightly entitled, he resorted to a procedure to
obtain it which was customary, or accepted, in what-
ever activity he engaged. This economic, political, or
cultural process, respectively, became due to persons
as a right and was not necessarily the same in different
nations, or even in regions or localities within a nation;
regardless of what the formal or informal standards
of procedure were, they were justified in some manner
and continued to be claimed and variously applied as
different needs arose over the years.
There is a second and more particularized aspect
of such process that is one's due, which comes with
a broadening of the meaning of “due.” The term con-
tinues to mean an entitlement or right, but now has
added a regularity or institutionalized formality of a
legalistic nature. One reason for this addition is that
a continuing basis for the civilization which charac-
terizes all developed nations is a need for, and reliance
upon, some regular form of procedure to apply the
law as a means of social control. In every such country
the law is usually divided and applied in both a pro-
cedural and substantive manner. The latter ordinarily
deals with the content of the rules and principles which
apply to those governed, while the former deals with
the methods whereby the content of the law is applied
in particular cases. For example, the Ten Command-
ments are concerned almost exclusively with substance
and give the moral laws which are to be followed and
obeyed, as does the Golden Rule. It appears that where
a formalized belief impinges upon and determines the
conduct and control of a relatively small group, de-
tailed legalistic procedures are not urgently needed,
as such religious forms dominate. But where a nation
is large or controls an empire it must codify its laws
and evolve uniform procedures to expedite the han-
dling of cases, e.g., the Babylonian Code of King
Hammurabi (ca. 2100? B.C.), the Roman Law of the
Twelve Tables, and the English common law.
Historically the idea and content of due process of
law arose in very ancient times. The earliest records
disclose the difficulty of the Egyptian King Harmhab
in finding “two judges... acquainted with [the] pro-
cedure of the palace and the laws of the court.” And
his instructions to the judges included an admonition
not to decide a case “without hearing the other” party.
The oldest court record (ca. 2500 B.C.) shows that the
Egyptian legal procedure included allegations of a
claim, denials by the other, and the requirement that
the first party produce “credible witnesses who will
make oath” supporting him; otherwise the case is to
be decided negatively (Wigmore, I, 15, 33f.). The ear-
liest Mesopotamian legal records (ca. 2000 B.C.) disclose
similar procedures, and the Hebraic Ninth Command-
ment is “Neither shalt thou bear false witness against
thy neighbor.” Hindu and Chinese records of the same
era are hardly available, but China's reliance upon its
past enables its earliest known codes to indicate proce-
dures analogous to the preceding, and even the hetero-
geneous and religion-oriented peoples of India were
given a monarchical personal form of justice which
included such minimal procedures.
These minimal procedures seem to include some
form of what is today called “notice” that charges are
being preferred against a person, then a trial or hearing
on them before a (disinterested) court which deter-
mines the matter; all these and other details are con-
densed into the phrase “notice and hearing.” This
phrase seems to entail universal standards of elemen-
tary procedural regularity and fairness. There appar-
ently was no requirement of any degree of formality
in these details, although eventually they evolved into
generally adopted conventional forms. And there does
not initially appear to be any general rationale to
support the original necessity for these particular re-
quirements, religious, legal, or political.
Homer's description of the shield made by Hephaes-
tus (Vulcan) for Achilles in the Trojan War depicts,
in one part, the marketplace where the people
“swarm” for a lawsuit; the parties each pleaded, their
witnesses appeared, “The rev'rend Elders nodded o'er
the Case” before they each proposed judgments, and
the jury, i.e., “the partial People,” then chose one
proposal by acclamation and so decided the case (The
Iliad, Book XVIII). In addition to this concept of a
jury the Athenians added professional advocacy, with
skill in argumentation and oratory, such as that of
Demosthenes, to sway the crowds. The Roman Twelve
Tables also required analogous notice and hearing,
although soon a court of justice or Basilica was used
for trials; eventually the Roman Emperors substituted
praetors, i.e., professional judges, for the lay juries.
These judicial methods were generally assimilated by
the jus gentium which Roman tribunals applied uni-
versally, although other nations, e.g., the Celts, Gauls,
and Germanic tribes, had long histories of analogous
procedures. Even into the eleventh century such pro-
cedural requirements may be found, as in the decree
of Conrad II in 1037 that “no man shall be deprived
of a fief... but by the laws of the empire and the
judgment of his peers...” (Stubbs, p. 147). The most
famous trial in history occurred in the Praetorium at
Jerusalem with notice via His arrest, the preferment
of charges, a tribunal to hear, the giving of evidence,
the opportunity to reply, and the judgment and sen
tencing. This idea of due process of law seems to
appear early in history whenever a person was charged
or accused in what is today called an “accusatorial”
(criminal) or “adversary” (civil) proceeding. By con-
trast, the inquisitorial proceeding is applied to a person
who may never even be accused but is still subjected
to an inquiry and determination without knowing the
charges, and who may also be compelled to give evi-
dence which convicts him. This inquisitorial proceed-
ing is to be differentiated from the preliminary investi-
gatory one which may precede a criminal accusatory
proceeding.
At the beginning of the modern period we find that
in France the Declaration of the Rights of Man and
of the Citizen (Droits de l'homme et du citoyen), pro-
mulgated in 1789 and made a part of the Constitution
of 1793, required in Article 7 that “No man should
be accused, arrested, or held in confinement, except
in cases determined by the law, and according to the
forms which it has prescribed.” In other countries other
forms and hybrids developed. The Universal Declara-
tion of Human Rights, approved by the General
Assembly of the United Nations in 1948, attempted
to formulate such general principles applicable every-
where (Art. 10).
For the English-speaking peoples it may be that
Article 39 of Magna Carta (June 15, 1215) and its
subsequent interpretation settled any doubts as to pre-
ferment of the accusatorial-adversary procedures. Its
language eventually safeguarded the “free man” from
being “in any way ruined... except by the lawful
judgement of his peers or by the law of the land.” In
addition to this general clause the Great Charter con-
tained other specific procedural ones although, as
James Madison remarked in 1789 when proposing the
future Bill of Rights, “Magna Charta does not contain
any one provision for the security of those rights,
respecting which the people of America are most
alarmed” (1 Annals 453). Magna Carta nevertheless
became a sacred text in England and famous as the
precursor of the phrase, “due process of law,” first used
by Edward III in a statute of 1354 (28 Edw. III, c.
3). It was, however, Sir Edward Coke's Second Institute
which emphasized the concept and insisted that “law
of the land” meant “due process of law”; it thus be-
came a part of the common law and was given a
natural-law interpretation and flavor.
The American colonial reception and modification
of the idea of due process of law is disclosed in the
early charters granted by the Crown, the laws of the
colonists, the documents preceding and following the
American Revolution, and the various state and federal
constitutions. Colonial statutes and documents contin-
ued the Crown charters' general references but also
became more specific. For example, acting under the
grant by Charles I in 1629, the Massachusetts colonists
agreed “to frame a body or grounds of laws in resem-
blance to a
magna charta,” and their 1641 Body of
Liberties provided somewhat detailed procedures (J.
Winthrop,
The History of New England from
1630-1649, Boston [1826], II, 57). The New England
Confederation of 1643, the Dutch provisions for New
Amsterdam in 1663, and the New York “Charter of
Libertyes and Priviledges” of 1683, all provided for
a form of due process, and due process was claimed
as a right by the Congress of the Colonies held in New
York in 1765. Similarly, the First Continental Congress
of 1774 resolved that the colonists “are entitled to life,
liberty and property... [and] to the common law of
England,” and following its suggestion the colonies
promulgated their own Constitutions. The famous
Declaration of Rights adopted by Virginia in 1776
included the guarantee “that no man be deprived of
his liberty, except by the law of the land, or the judg-
ment of his peers,” and with minor changes in language
this was the general type of clause used. It was also
found in the famous Northwest Ordinance of 1787.
The Constitutional Convention of 1787 discussed
briefly and adopted a few procedural rights. In some
of the state ratifying conventions bare majorities were
obtained only because of promised amendments. Seven
ratifying States appended lengthy proposals; New
York's included “That no Person ought to be... de-
prived of his Privileges, Franchises, Life, Liberty or
Property but by due process of Law” (Documentary
History of the Constitution, Washington, D.C. [1894]
II, 192), and this may be the first use of this clause
in the United States. In 1789 James Madison called
the attention of the House of Representatives to these
obligations and his proposals included the clause which
eventually became part of the Fifth Amendment, that
“No person shall... be deprived of life, liberty, or
property, without due process of law” (1 Annals
451-52). Curiously, not a single word appears in the
Annals discussing or concerning the meaning of due
process of law, but it undoubtedly was not meant to
include the other substantive and procedural specifics
which were discussed in some detail. Of the ten
amendments to the American Constitution ratified in
1791, the first eight are generally termed the Bill of
Rights. The question whether these limited the federal
government only, or also the states, arose in 1833. Chief
Justice Marshall held in effect that they were a limita-
tion solely on the federal government (Barron v. City
of Baltimore, 7 Pet. 243).
In the first important case involving the Due Process
Clause it was determined that the language was “un-
doubtedly intended to convey the same meaning as the
words 'by the law of the land,' in Magna Charta”
(Murray's Lessees v. The Hoboken Land & Improve-
ment Co., 18 How. 272, 276 [1856]). This dictum lim-
ited the Clause to procedural notice and hearing, with
the notice required to be adequate and the hearing
fair, and subsequent opinions also followed this view
(of course, “adequate” and “fair” themselves had to
be interpreted, defined, and applied). Until 1868 this
limitation and interpretation was not disturbed; in that
year the Fourteenth Amendment was ratified, and its
first section, second sentence, opens with “No State
shall... deprive any person of,” and then repeats
verbatim the Fifth Amendment's language quoted
above. There are thus two Due Process Clauses, the
earlier one limiting the federal and the later one the
state governments. Although the language is practically
identical in both, their interpretation is not necessarily
so (French v. Barber Asphalt Paving Co., 181 U.S. 324,
328 [1901]); for practical purposes, however, they may
be and here are treated as somewhat alike.
The colonial and American idea of due process
which now emerges, especially in the light of its
English background, indicates only a procedural con-
tent. This idea is not limited to judicial or quasi-judicial
proceedings. As disclosed at the outset, due process is
found in many nonlegal areas such as unions, educa-
tional institutions, the church, fraternal organizations,
political conventions, and various disciplinary or other
proceedings (Forkosch, “American Democracy...,”
p. 173). However, while due process in the nonjudicial
fields in the United States has generally been restricted
to procedure, in the judicial area it has been inter-
preted so as to include substantive rights. The basis
for this is found in the separation of the Clause's lan-
guage into first “life, liberty, or property,” and then
into “due process of law,” terming them respectively
substantive and procedural due process. The judiciary
in effect has said that the substantive portion may stand
alone as a limitation upon the governments, preventing
them from depriving a person of these rights when it
felt this should not occur; when permitting the depri-
vation, however, the Justices then insist that the pro-
cedural requirements be observed, that is, the term
“without” is now activated.
The earliest questioning of a solely procedural con-
tent in the Clause is found in a little-publicized opinion
of 1819 (The Bank of Columbia v. Okely, 4 Wheat.
235, 244), and in the same year that Murray (noted
above) was decided, New York's highest court rejected
that state's exercise of power “even by the forms of
due process of law” (Wynehamer v. People, 13 N.Y.
378 [1856]). The following year Chief Justice Taney,
despite his earlier acquiescence in the Murray opinion,
wrote that “it is beyond the powers conferred on the
Federal Government” to deprive a citizen of his prop-
erty (
Dred Scott v. Sandford, 19 How. 393, 451 [1857]).
After the ratification of the Fourteenth Amendment
the first major case to mention the new Clause was
the
Slaughter-House Cases of 1873 (16 Wall. 36). In
his dissenting opinion Justice Bradley pointed up its
usefulness, and then rejected the “great fears” that this
would lead to Congressional interference “with the
internal affairs of the states... and thus abolishing
the state governments in everything but name...” (at 122f.).
This judicial self-abnegation, however, did not last
long. Aroused by the 1876 Granger Cases (94 U.S. 113)
which upheld a state's police power to prescribe rates
charged by businesses affected with a public interest,
the American bar influenced the Supreme Court to
strike down “State laws, regulatory of business and
industrial conditions, because they [were] unwise,
improvident, or out of harmony with a particular
school of thought” (Justice Douglas in Williamson v.
Lee Optical Co., 348 U.S. 483, 488 [1955]). By 1890,
with three dissenters, the Supreme Court took a deci-
sive plunge into the substantive due process waters by
requiring judicial review of a railroad commission's
rate-making determination, as well as its procedure
(Chicago, Milwaukee, & St. Paul Ry. Co. v. Minnesota,
134 U.S. 418 [1890]). Thus in 1927 Justice Brandeis
could write: “Despite arguments to the contrary which
had seemed to me persuasive, it is well settled that
the due process clause... applies to matters of sub-
stantive law as well as to matters of procedure” (dis-
senting in Whitney v. California, 271 U.S. 357, 373).
The substantive limitation may therefore be enforced
against a government independently of the second re-
quirement, that is, a government may not have any
power whatever to act regardless of the excellence of
its procedural methods; or, even if it has such a sub-
stantive power, it may be acting poorly in its proce-
dural method. The consequences in each situation are
different, for if a government cannot exercise a partic-
ular substantive power then it cannot act at all under
it unless a judicial reversal occurs, a constitutional
amendment is ratified, or another and separate power
can be exercised; if, however, it is only the procedure
which is bad, this may be properly corrected and the
otherwise same law now upheld.
The subsequent exercise of this power by the Su-
preme Court, even though in exceptional cases the
federal and state governments were permitted a degree
of control, produced outcries of indignation from lay-
men and jurists. For example, in the debate on the
nomination of Chief Justice Hughes in 1930, Senator
William E. Borah denounced the Court as “the eco-
nomic dictator” of the country; Brandeis felt the ma
jority was exercising “the powers of a super-legisla-
ture” (dissenting in Jay Burns Baking Co. v. Bryan,
264 U.S. 504, 534 [1924]), while Holmes castigated
their use of “no guide but” their “own discretion” so
that he could “see hardly any limit but the sky to the
invalidating of those [constitutional rights of the States]
if they happen to strike a majority of this Court as
for any reason undesirable” (dissenting in Baldwin v.
Missouri, 281 U.S. 586, 595 [1930]).
The turn came with the New Deal era of 1932. The
judicial retreat began with its upholding of federal and
state legislation by reversing many of the earlier cases,
expanding the use of the Constitution's Commerce
Clause (in Art. I, §8, cl. 3) to support new laws directed
against economic and social evils, and withdrawing
from its due process supervisory role. However, al-
though in 1965 it reiterated that “We do not sit as
a superlegislature to determine the wisdom, need, and
propriety of laws that touch economic problems, busi-
ness affairs, or social conditions” (Griswold v. Connec-
ticut, 381 U.S. 479, 482), the Court still retains and
exercises such powers albeit their scope and depth have
been voluntarily reduced and narrowed (e.g., Nebbia
v. New York, 291 U.S. 502 [1934], and especially
Ferguson v. Skrupa, 372 U.S. 726 [1963]). The Justices
have now transferred their major directing role from
the economic to other areas, in effect becoming mod-
ern Platonic philosopher-kings in determining the
minimal procedural and substantive due process of law
which must be accorded all persons; nowhere else in
the free nations is there such a concentration of this
definitional power delegated to nine appointed indi-
viduals. These conclusions are supported by what fol-
lows.
In 1954 the Court's new form of activism began with
the Desegregation Case (Brown v. Board of Education,
347 U.S. 483), which used the Fourteenth Amendment's
Equal Protection Clause to strike down a state's edu-
cational segregation; simultaneously, however, the
Fifth Amendment's Due Process Clause was used to
denounce similar federal conduct in the District of
Columbia, the Court saying “It would be unthinkable
that the same Constitution would impose a lesser duty
on the Federal Government” (Bolling v. Sharpe, 347
U.S. 497, 500). This new approach presaged an ex-
tended further broadening of the content of the Due
Process Clause, and in this regard another question
arose, namely, did the Barron case, mentioned above,
still limit the use of the Bill of Rights only against the
federal government or could it now also so limit the
states? As part of their rejection of a generalized natu-
ral law content in the Due Process Clause, Justices
Black and Douglas urged that the specifics of the entire
Bill of Rights be embraced in that Clause (Adamson
v. California, 322 U.S. 46 [1947], in effect following
the like view of the first Justice Harlan in
Hurtado v.
California, 110 U.S. 516, 550 [1884]). The Supreme
Court has never accepted this “total incorporation”
view but utilizes a selective case-by-case approach,
handling each Clause in the first eight Amendments
separately. The result has nevertheless been an almost
total incorporation, with only a few Amendments and
Clauses not so embraced.
The Due Process Clauses thus impose limitations
upon both federal and state governments in civil,
criminal, and administrative proceedings, as well as
upon their acting through legislative, executive, and
(state) judicial branches when they “exceed” their sub-
stantive or procedural (constitutional) powers. For
example, in civil matters notice continues to be vital,
even though a sufficiency of (minimum) contacts ena-
bles personal jurisdiction to be obtained upon a non-
resident person, and a fair hearing remains an impor-
tant requirement in every type of adversary
proceeding. In criminal matters a virtual revolution
occurred during the 1960's. The rights of persons in-
clude not only such procedural ones but also, e.g., all
of the First Amendment's substantive clauses involving
free speech, religion, press, and assembly. For example,
the rights to associate and also peacefully to picket
and handbill within broad limits whether for labor,
consumer, political, or other reasons, are protected, as
are teachers and public servants protected against
loyalty oaths, vague requirements, and “fishing investi-
gations”; and education and religion are generally not
intermixed.
Summary. Due process, whether in the general area
of human conduct or the particular one of law, thus
connotes a procedure or method which includes regu-
larity, fairness, equality, and a degree of justice. The
idea is found in the internal disciplinary and other
procedures used by labor unions, athletic organizations,
social clubs, educational boards, business firms, and
even religious groups, to mention but a few. The use
of the term by the judiciary in the United States at
first tended to follow the early procedural formulation;
since the 1890's, however, a substantive content grad-
ually broadened the meaning of due process.
BIBLIOGRAPHY
C. Fairman, “Does the Fourteenth Amendment Incorpo-
rate the Bill of Rights?,” Stanford Law Review, 2 (Dec.
1949), 5-139. M. D. Forkosch, “American Democracy and
Procedural Due Process,” Brooklyn Law Review, 24 (April
1958), 173-253; idem, Constitutional Law, 2d ed. (New York,
1969). O. W. Holmes, The Common Law (Boston, 1881). J. C.
Holt, Magna Carta (Cambridge, 1965). H. S. Maine, Early
Law and Custom (New York, 1886). L. P. McGehee, Due
Process of Law Under the Federal Constitution (New York,
1906). C. H. McIlwain, “Due Process of Law in Magna
Carta,” Columbia Law Review, 14 (Jan. 1914), 27-51. R. L.
Mott, Due Process of Law (Indianapolis, Ind., 1926). F. C.
Newman, “Natural Justice, Due Process and the New
International Covenants on Human Rights: Prospectus,”
Public Law (Winter 1967), 274-313. F. M. Powicke, Magna
Carta Commemoration Essays, ed. H. G. Malden (London,
1917). W. Stubbs, Germany in the Middle Ages, 476-1250,
ed. A. Hassall (London, 1908). H. Taylor, Due Process of
Law (Chicago, 1917). J. W. Thompson, Economic and Social
History of the Middle Ages (New York, 1928). B. R. Twiss,
Lawyers and the Constitution (Princeton, 1942). U.N. Com-
mission on Human Rights, Study of the Right of Everyone
to be Free, etc. (New York, 1964, Doc. E/CN. 4/826/rev.
1). J. H. Wigmore, A Panorama of the World's Legal Systems,
3 vols. (St. Paul, Minn., 1928). E. M. Wise, “International
Standards of Criminal Law and Administration,” Interna-
tional Criminal Law, ed. G. O. W. Mueller and E. M. Wise
(London, 1965), Ch. 2.
MORRIS D. FORKOSCH
[See also Civil Disobedience; Constitutionalism;
Equality;
Justice; Law, Ancient Greek, Ancient Roman, Common,
Equal Protection, Natural;
Legal Responsibility; Property;
Social Contract; State.]
