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This research paper assesses the history of the concept of due process in Anglo-American jurisprudence. While the actual phrase ‘due process of law’ first appeared in the Magna Carta, the concept of due process was transformed when the American colonists adopted it as a limiting principle not only on the use of executive power but also on the scope of the laws that could be passed. Due process protects substantive rights by requiring procedural regularity in the exercise of governmental power and insists that procedural regularity may not be altered by the normal operations of political power. In the twentieth century, due process law in the United States developed in three central phases – substantive, procedural, and functional due process – and these trends continue into the twenty-first century.
- Substantive Due Process
- Procedural Due Process
- Due Process Functionalism
- Due Process in Other National Legal Systems
The concept of due process emerges from the central paradox in the creation of state authority. Following Thomas Hobbes (1994), the governmental state may be seen as an evolutionary response to the failings of the state of nature. In the war of all against all, no person has an incentive to industry, writes Hobbes in the Leviathan, because each lacks security in investment, planning, and the ability to exchange. Each faces the threat of bodily violence, invasion of the home, and seizure of property. The response, per Hobbes, is the creation of the state, a body that can impose order, lift mankind from the pitiable war of all against all, and secure collective benefits. The paradox emerges in that the creation of the state also produces a magnified form of the threat that was ever present in the state of nature. The state represents the largest entity capable of inflicting bodily violence, invading the home, and seizing property. Indeed, all states reserve to themselves the right to do just that to their citizens, and most include the right even to punish by death. What then differentiates the modern state that claims political legitimacy from the state of nature? The answer must begin with an abiding respect for procedural fairness in the imposition of punishment and the regulation of the conduct of the citizens’ lives Thomas Hobbes (1994).
This conception of procedural fairness is at the heart of the concept of the rule of law, and of its more technically exigent offshoot, the guarantee of due process. The typical formulation of due process, as that concept has developed in Anglo- American jurisprudence, is derived from the Magna Carta, issued by King John in 1215 in the face of rebellious barons seeking restraint upon the exercise of royal prerogatives:
No free man shall be seized or imprisoned, or stripped of his rights or possessings, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
The crux of the original formulation was to limit the power of the royal sovereign by granting legal protection to the life, liberty, and property of English freemen. The significance of the Magna Carta’s guarantees emerges from the form of the limitation on sovereign authority. The document does not attempt to deny the sovereign the capacity to imprison, outlaw, or banish the rights-holding citizenry, or to have restraints imposed on the enjoyment of property or other rights held by citizens. Rather it imposes a condition of procedural regularity in the exercise of the sovereign’s power, including central, orderly trial processes and formal proclamation of the applicable legal standards. This notion of procedural regularity is captured in the actual phrase, ‘due process of law’, which first appeared when the Magna Carta was issued in an English version in 1354 by King Edward III. Its modern vitality draws from the efforts of Sir Edward Coke in the seventeenth century to revive the Magna Carta as a check on the power of the Stuart monarchs.
Not surprisingly given these origins, due process emerged from medieval Britain primarily as a restraint on the executive power of the sovereign, specifically of the Crown. The concept of due process was transformed when the American colonists adapted the Magna Carta as a limiting principle not only on the use of executive power but also on the scope of the laws that could be passed. For colonists lacking the rights of participation in the creation of laws, the insult of arbitrary state power occurred whether power was exercised legislatively or by the sovereign. As recast by the colonists, due process became a limitation that extended beyond the power of the crown, to encompass as well local assemblies and, by the time of the revolution, Parliament. Thus, even as England adopted a system of increasing parliamentary sovereignty, the concept of due process as a constraint on the exercise of governmental power retained its vitality in the colonies. As a result, the newly independent Americans established a more limited government, reflected by the Bill of Rights (including a due process clause), as an explicit limitation on the use of state power, including the legislative branch. As articulated by James Madison, “The legislature, no less than the executive, is under limitations of power,” and hence the rights of the people were to be secured ‘against legislative as well as executive ambition’ (Madison, 1896). The source of the limitation was a constitutional command that stood apart and above the normal operations of state authority.
The American focus on legislative power also highlights the importance of due process as a restraint not just on the penal powers of the state but on its civil regulatory powers as well. Due process emerges from this historical origin with two central features. First, it protects substantive rights independently secured by positive law by requiring procedural regularity in the exercise of all governmental power. Second, the requirement of procedural regularity may not be altered by the normal operations of political power. As reflected in the American constitutional experience, the guarantees of due process are not directly accountable to the political dictates of either the executive branch of government (the closest in form to the sovereign crown) or the legislative will of the majority. As a constitutional guarantee, the requirements of due process may not be altered though the customary political processes of legislation. It is these two features of procedural regularity and independence from direct political accountability that define due process as it has emerged most clearly in American constitutional law, which long ago held due process to be a protection of ‘those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’ (Hurtado v. California, 110 US 516, 535, 1884). Because the development is most clear in American constitutional law, that will serve as the template for further elaboration.
There are five basic elements of due process that may be adduced from American case development, particularly after the post-Civil War amendments to the Constitution extended the command to the conduct of the states toward their citizens. The two given the greatest significance are that, “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified” (Baldwin v. Hale, 68 US (1 Wall.) 233, 1863). The opportunity to be heard and its “instrumental corollary, a promise of prior notice” (Tribe, 1988), according to the Supreme Court, ‘seem to be universally prescribed in all systems of law established by civilized countries’ (Twining v. New Jersey, 211 US 78, 110–111, 1908). The additional elements of due process are further corollaries necessary to make the right to a hearing meaningful: the right to an impartial arbiter, the right to be represented by counsel, and the right to timely resolution of claims.
The articulation of these elements of due process leaves unanswered a central question dating from the time of the Magna Carta: Are these due process rights intended as affirmative entitlements of the citizenry, as indispensable restraints on the state, or as instrumental checks against arbitrary, capricious, or simply misguided state conduct? Put another way, the constitutional enshrinement of a principle of due process can be seen as creating a distinct set of rights among the citizenry, or as a constraint on governmental processes. Measured against this template, it is possible to characterize the development of twentieth century due process law as passing through three central phases.
Substantive Due Process
The most forceful introduction of due process into the American constitutional canon came in the closing years of the nineteenth century with the emergence of the substantive due process doctrine. Federal courts gave independent substantive meaning to the Fourteenth Amendment’s prohibition on states’ restricting the enjoyment of life, liberty, or property without due process of law. Under this view, state incursions upon the affirmative rights of citizens to be secure in their life, liberty, and property were presumptively invalid and subject to exacting judicial scrutiny. The key to this period was an expansive set of presumed individual claims against state regulation. The domain of legitimate state activity was restricted to ensuring the public health, guarding against inherently hazardous activities, and protecting those who could not fend for themselves at law. This last group included (at the time) children, the mentally incompetent, and women. The most controversial feature of substantive due process came with the expansive definition of liberty to include a broad range of market freedoms that in turn prompted federal courts to strike down state regulatory measures by the dozens. Most famous no doubt was the Court’s 1905 ruling in Lochner v. New York (198 US 45, 1905), a case that struck down a maximum hours regulation for the employment of bakers on the substantive due process grounds of ‘liberty of contract’. The hallmark of this period was the use of a high threshold of procedural presumptions against the legitimacy of state regulatory initiatives. The period of substantive due process lasted until its repudiation by the Supreme Court in the New Deal period of the 1930s. Nonetheless, the reaction to the perceived hostility of the Court to progressive social legislation earned the Lochner period notoriety as a constitutional epithet and removed substantive due process from the constitutional lexicon, until its tentative re-emergence at the end of the twentieth century in difficult cases such as the constitutional review of assisted suicide (Washington v. Glucksberg, 521 US 702, 1997). Most recently, the Supreme Court has used the liberty guarantees of the due process clause to ground the privacy rights underlying reproductive freedoms and the constitutional protection of homosexual activity from criminal prosecution (Lawrence v. Texas, 539 US 558, 2003).
Procedural Due Process
The second great phase of due process activism came with the Warren Court of the 1960s. Unlike the Lochner period’s focus on the expansion of substantive claims that triggered due process, the hallmark of the second phase was a focus on ‘procedural due process’, which was understood as an expansion of the process-based requirements for the state to act adverse to the interests of affected citizens. In a series of decisions involving legislatively conferred benefits, ranging from driver’s licenses to welfare benefits, the Court interposed an elaborate series of processes required before such benefits could be withdrawn. The right to a hearing was repeatedly invoked in this period as an affirmative right of participation in governmental processes that inhered in the rights of citizens. The Court did not seek to expand the ambit of positive rights – entitlements were created by the normal processes of government – but instead used the due process clause to enforce heightened procedural hurdles before government could deny a benefit. Instead of the liberty to contract of the early twentieth century, the aggrieved due process claimant of the postwar period would claim a ‘right to be heard’ prior to adverse governmental action. Critics charged that the elevated procedural steps created a presumption against adverse governmental action almost as certain as that of the substantive due process period. But more problematic, as evidenced in the ensuing case law, was how to reconcile near-categorical requirements of an inherent participatory right to process with a range of governmental conduct that required swift response to emergency situations. The case law struggled to find a mediating principle that would allow emergency responses, as with police searches, the impounding of goods in flight, the embargo on goods threatening public health or safety, and a range of comparable conduct whose successful implementation could not await notice and an adversarial hearing.
Due Process Functionalism
The tension in the heightened proceduralism of the Warren Court prompted a scaling back of inherent rights in favor of an instrumental approach to due process. Whereas both the substantive due process and procedural due process period had read the due process command to vest the citizenry with affirmative rights against the state, the functional period beginning in the mid-1970s saw in due process a check against improper or incorrect governmental decisions affecting life, liberty, or property. Thus, in the watershed case of Mathews v. Eldridge (424 US 319, 1976), the Supreme Court analyzed a challenge to the termination of social security disability benefits not in terms of whether due process protections attached, but rather in terms of how much process was due. By contrast to cases of the Warren Court period that assumed that process would have to be the full panoply of evidentiary protections, Mathews v. Eldridge held that the amount of process required prior to adverse governmental conduct would be determined by a balance of interests heavily weighted toward considerations of cost and likelihood of error:
Due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used; and the probable value, if any, of additional or substituted procedural safeguards; and finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (424 US at 334–335)
In the decades since Mathews v. Eldridge, this form of due process functionalism has come to command this area of American constitutional law. All the critical elements of due process – from the right to an evidentiary hearing to the right to counsel – are now subject to the balancing of magnitude of loss versus likelihood of error versus governmental interest in swift action. Some of the applications appear inevitable, as with the ability of police to immobilize illegally parked cars, even in the absence of notice and a prior hearing. Some are more problematic, as with the denial of the right to have counsel provided to an indigent prisoner facing civil proceeding for termination of parental rights.
The case of Hamdi v. Rumsfeld (542 US 507, 2004) offers a recent example in the freighted context of threats of terrorism. The petitioner, Yaser Esam Hamdi, was an American-born individual taken prisoner in Afghanistan during the American military action in 2002 and held as an ‘enemy combatant’ in a military prison on United States soil. The government’s only evidence supporting Hamdi’s classification as an enemy combatant would have been inadmissible as hearsay under most circumstances. However, Hamdi was not allowed to challenge the evidence and was not allowed to speak to a lawyer or contact his family, who themselves had to file a petition of habeas corpus on his behalf. Invoking Mathews’ functional approach as the controlling law even in national security cases, the Court conceded that although a hearing was required, it need not, due to the needs of the government during wartime, necessarily include every procedural protection available in, say, a criminal trial. The exact details of the hearing were left to be developed subsequently, but the Court’s message was clear: due process remains a vital protection even if its application must be flexible.
Nearly 800 years after the Magna Carta, this functional view of due process has firmly taken hold in the most developed of due process legal regimes.
Due Process in Other National Legal Systems
Broadly speaking, a large number of the fundamental rights accorded to individuals under the American conception of due process are also found in other nations’ laws, with one critical caveat. The conception of due process, particularly in civil law systems, primarily addresses rights of criminal procedure – for example, the French Declaration of the Rights of Man, which explicitly grants the right to be free from arbitrary arrest and detention. Various international agreements, such as the Convention for the Protection of Human Rights and Fundamental Freedoms, contain similar language. Many national constitutions similarly guarantee the rights to notice, choice of counsel, a speedy trial, and appeal.
Even in the sphere of criminal procedure, there are significant differences between the American notion of due process and that found in other countries. Perhaps the most striking example is the absence in many legal regimes of the right to be presumed innocent that is considered so fundamental in the United States. Also absent in many countries is a notion that both sides in a criminal trial have equal opportunity to advocate their positions.
More revealing is a comparison of the American and German conceptions of due process. On one level, the two countries’ approaches are similar. Both put a pre-eminent value on human liberty. Thus, Article 1(1) of the German constitution states that “the dignity of man shall be inviolable.” This notion of human dignity is akin to the American concept of substantive due process. Both are tools that have been utilized by the respective courts to ‘discover’ hitherto unenumerated rights. In this sense, both countries have a conception of due process that is, to a certain extent, open ended. As a consequence, both must grapple with an abstract and amorphous concept, often with controversial results.
But perhaps the most fundamental difference lies in their highest courts’ approaches to constitutional interpretation. While the German Constitutional Court has interpreted its constitutional mandate to develop a systematic approach to constitutional jurisprudence, the United States Supreme Court, by emphasizing procedural regularity, has exhibited a tendency to act in a piecemeal fashion. The result is that, in some ways, the German view of due process appears even more comprehensive than that of the United States. Most importantly, Germany guarantees the protection of ‘personality rights’ and ‘physical integrity’, which are akin to the American procedural due process. But, unlike the United States Supreme Court, which has often worked to construe due process narrowly, the German Constitutional Court has consistently taken a broad view of due process, viewing as properly furthering the fundamental principle of human dignity – a far more sweeping command than recognized in the initial procedural focus of Anglo-American law.
- Hobbes, T., 1994. Leviathan. J. M. Dent, London.
- Madison, J., 1896. Report on the Virginia resolutions. In: Elliot, J. (Ed.), Debates in the Several State Conventions on the Adoption of the Federal Constitution, vol. 4. Lippincott, Philadelphia, PA.
- Tribe, L., 1988. American Constitutional Law. Foundation Press, Mineola, New York.