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Due process of law is a legal concept that ensures the government will respect all of a person's legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty, or property. Due process has also been interpreted as placing limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice, and liberty. The legal systems of many nations embrace some variant of this, such as the concept of fundamental justice in Canada.
 International Due Process
Most countries recognize some form of due process under customary international law. Although the specifics are nebulous, there has been consensus that a nation must guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they were bound to grant no more rights to aliens than they did to their own citizens—the doctrine of national treatment—which also means that both would be vulnerable to the same deprivations by the government. With the growth of international human rights law and the frequent use of treaties to govern treatment of foreign nationals abroad, the distinction in practice between these two perspectives has all but disappeared.
 Due process in the United States
The Fifth Amendment contains a guarantee of basic due process applicable only to actions of the federal government: "No person shall be... deprived of life, liberty, or property, without due process of law...." The Fourteenth Amendment contains the same phrase, but expressly applied to the States. The Supreme Court has interpreted the two clauses identically, so under the federal Constitution, there is no substantial difference in protection from federal or State action. However, State constitutions also have their own guarantees of due process that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to individuals than under federal law.
Due Process under the federal Constitution has additionally been interpreted as a restraint on the ways that legislatures may alter the law, although some judges over the years have objected to stretching the Due Process Clause beyond what was intended hundreds of years ago by the king and barons of the Magna Carta era.
As a limitation on Congress, the Due Process Clause has been interpreted by the Supreme Court to have both procedural and substantive components, meaning that it imposes restrictions on legal procedures—the ways in which laws may operate—and also on legal substance—what laws may attempt to do or prohibit. The distinction between substance and procedure is difficult in both theory and practice to establish. Moreover, the substantive component of due process has proven to be very controversial, because it gives the Court considerable power to strike down state and federal statutes that criminalize various activities.
"[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v General Construction Co., 269 US 385, 391 (1926).
 Procedural due process
Procedural due process is essentially based on the concept of "fundamental fairness." As a bare minimum, it includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings. In criminal cases, it ensures that an accused person will not be subjected to cruel and unusual punishment.
In the United States, criminal prosecutions and civil cases are governed by explicit guarantees of rights under the Bill of Rights and as incorporated under the Fourteenth Amendment to the States. Due process provides a minimum floor of protection to the individual that statutes, regulations, and enforcement actions must at least meet (but can exceed), in order to ensure that no one is deprived of life, liberty, or property arbitrarily and without opportunity to affect the judgment or result. This minimum protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being punished, which would be tantamount to cruel and unusual punishment.
 Personal jurisdiction
Procedural due process places limits on the assertion of personal jurisdiction over a defendant to a lawsuit, limiting the locations where that defendant may be hailed into court. This is of particular relevance in cases involving business transactions conducted across state lines, where the defendant may not have set foot in the other state, but still conducted affairs with the other state's residents through correspondence, the shipment of goods, or indirect agents. This limitation also applies to jurisdiction over foreign defendants in U.S. courts.
In a somewhat complicated line of cases, the Supreme Court has required that the defendant had established minimum contacts with the jurisdiction wishing to act as a forum for the litigation, such that the defendant should not be surprised that he was subject to suit in that location. The defendant must have purposefully availed himself of the privilege of conducting business within that jurisdiction—intentionally directing his activities at that state and its residents. Simply put, the defendant's actions determine where he can be sued, rather than the actions or movement of the plaintiff. Courts are still working out how this applies to lawsuits regarding Internet activity and business, though they appear to be in agreement that the "passive" posting of a website is not enough to establish widespread jurisdiction wherever someone wants to sue the web author over the contents.
A court in one state must have a means of notifying the resident of another (or of a foreign country), to comply with the notice requirement of due process. This is typically done through "long-arm statutes" that provide for service of process upon the defendant in another jurisdiction through agents located or sent there. Because out-of-state defendants can't always be located easily, some state or local laws may allow for service by publication. An example of this would be printing a notice of the lawsuit in a newspaper published where the defendant is believed to reside. Because the failure of a defendant to appear in court results in a default judgment against him, such measures must be sufficiently calculated to give actual notice to the defendant to satisfy due process.
 Substantive due process
The courts have viewed the due process clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are "implicit in ordered liberty." Just what these rights are is not always clear, though life, property, and freedom from imprisonment are some of the better established. Others include the right to vote, the right to travel, and the right to privacy (which itself contains rights to raise, have, and not have children). Some of these rights have long histories or "are deeply rooted" in our society. For example, by the way battery has been defined by courts, common law held for centuries that people have the right to refuse medical treatment. Now, even if states changed the definition of battery to exclude unwanted medical procedures, many courts would find that right under the "liberty" part of the due process clause.
The courts have largely abandoned the Lochner era approach (approximately 1890-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract.
Modern substantive due process doctrine protects such rights such as the right to privacy, under which rights of bodily autonomy, private sexual activity (Lawrence v. Texas), contraception (Griswold v. Connecticut), and abortion (Roe v. Wade) fall, as well as most of the protections of the Bill of Rights. However, what are seen as failures to protect enough of our basic liberties and what are seen as past abuses and present excesses of this doctrine continue to spur debate over its use.
If the right at issue is considered a fundamental right, the government is prohibited from infringing that right unless the infringement is narrowly tailored to serve a compelling interest. The concept of a 'compelling interest' has never been well defined, but generally refers to something necessary or crucial, as opposed to something merely preferred. The concept of 'narrow tailoring' essentially means that the restrictions must fit the goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored. Finally, even if the government intrusion is narrowly tailored, it still cannot be more restrictive than other effective means of achieving that interest. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong. See Strict scrutiny.
 Substantive Due Process: Development and Use as Legal Doctrine
Early in American judicial history, various jurists attempted to form theories of natural rights and natural justice that would limit the power of government, especially regarding property and the rights of persons. Opposing vested rights were jurists who argued that the written constitution was the supreme law of the State and that judicial review could look only to that document — not to the unwritten law of natural rights. Opponents further argued that the police power of government enabled legislatures to regulate the holding of property in the public interest, subject only to specific prohibitions of the written constitution.
The idea of substantive due process came in as a way to import natural law norms into the United States Constitution; prior to the Civil War, the state courts - ungoverned by the Fifth Amendment - were the arenas in which this struggle was carried out. Most critics of substantive due process argue that the doctrine began with the infamous 1857 slavery case of Dred Scott v. Sanford.
Many date substantive due process all the way back to the Magna Carta, a document born from a struggle over interest between the King and barons, in which King John promised that "[n]o free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land."
"Due process of law" first appeared in a statutory rendition in 1354 as: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."
As the Magna Carta later expanded, it read: "No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land."
The founders of the United States constitutional system used "law of the land" and "due process" somewhat interchangeably. The 1776 Constitution of Maryland, for example, used the language of Magna Carta, including the "law of the land" phrase, in the Maryland declaration of rights. The New York Constitution of 1821 was the first state constitution to utilize the "due process of law" wording from the United States Constitution.
The substantive component of due process may have developed from an argument that the provision suggests some limitations on substance because of its association with the guarantee of just compensation upon the taking of private property for public use. In other words, no matter how full and careful a process is used, there is a substantive right to be compensated by the government for public use of one's property. By the middle of the 19th Century, due process of law came to mean that it was not left to the legislative power to enact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will.
The vested rights jurists found in the law of the land and due process clauses of state constitutions restricted the substantive content of legislation. The jurists successfully argued that certain government infringements were prohibited, regardless of procedure. Prior to the Dred Scott case, the influential New York Supreme Court held that "without 'due process of law,' no act of legislation can deprive a man of his property, and that in civil cases an act of the legislature alone is wholly inoperative to take from a man his property." Wynehamer v. People, 13 N.Y. 378, 418 (N.Y. 1856). Other examples are Murray's Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272 (1856), Webster's argument as counsel in Trustees v. Woodward, 17 U.S. (4 Wheat.) 518 (1819), and Chief Justice Shaw's opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857).
Thus, Chief Justice Taney was not breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the Missouri Compromise unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law."
The phrase "substantive due process" does not appear in the Dred Scott case; however, holding that a lack of enumerated powers over property prevented the federal government from freeing a slave, Dred Scott, like Wynehamer before, referred to property rights--and presumably life and liberty, rights that no government could destroy.
Following the Civil War, the Fourteenth Amendment's due process clause allowed substantive due process interpretations to be urged on the Supreme Court as a limitation on state legislation. The arguments came to be accepted over time, imposing on both federal and state legislation a firm judicial hand on property and economic rights that was not removed until the crisis of the 1930's.
In 1934 the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, it has been charged that substantive due process developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts. Although economic liberty restrictions on legislation were largely abandoned by the courts, substantive due process rights continue to be successfully asserted today in non-economic legislation affecting intimate issues like bodily integrity, marriage, religion, childbirth, child rearing, and sexuality.
"Privacy rights," unarticulated in the Constitution, were developed in Griswold v. Connecticut, in which the Court held that criminal prohibition of contraceptive devices for married couples violated the privacy rights of the married couple. Privacy was found in what the Court called the "penumbras," or shadowy edges, of certain amendments that arguably refer to certain privacy rights, such as the First, Fourth ("the right of the people to be secure in their persons, houses, papers, and effects"), and the Ninth Amendments. Although it has never been the majority view, the Ninth Amendment could as easily be used as the source of fundamental rights, like privacy, holding as it does, that: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Social conservatives who oppose sexual privacy rights can nevertheless find much to like in the line of substantive due process decisions. For example, religious parents persuaded the Supreme Court to recognize a substantive due process right "to control the education of one's children" and void state laws mandating that all students attend public school. In Pierce v. Society of Sisters, the Supreme Court held that no law may stand that "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." Thus, if the entire substantive due process line was reversed, it is conceivable that religious parents' option of home schooling or private schooling might be in danger from some state universal education laws.
If the court considers the right at issue to be a fundamental right (e.g., the right to travel or the right to vote), the government is prohibited from infringing on that right unless it can show that, first, the law was designed to meet a compelling government interest, and, second, that the law is the least restrictive means of achieving that interest.
 Criticisms of substantive due process
The same criticisms of the doctrine continue as in the past: that justices are reading their personal views into the Constitution instead of interpreting it. However, the disagreements now are usually much more concerned with what, based on tradition and history, should be embraced under such protections of fundamental liberty rather than whether there are such unspoken guarantees in the Constitution in the first place.
Oliver Wendell Holmes, Jr., a formalist, worried that the Court was overstepping its boundaries: "I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words 'due process of law,' if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass." Baldwin v. Missouri, 281 U.S. 586, 595 (1930) (Holmes, J., dissenting).
Originalists, such as Supreme Court Justice Thomas, who astringently rejects substantive due process doctrine and believes that due process should only limit legislators with respect to actual procedure, and Supreme Court Justice Scalia, who has been caustically dismissive of the legitimacy of the doctrine, call substantive due process a "judicial usurpation." Both Scalia and Thomas have occasionally joined Court opinions that recognize the doctrine, and have in their dissents taken more to arguing over how substantive due process should be employed based on Court precedent. In other words, the main debate in recent decades within the Court over substantive due process has been more about where to apply it, and less about whether it should be applied at all.
Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As propounded in his dissents in Moore v. City of East Cleveland and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will." In his book Democracy and Distrust, non-originalist John Hart Ely criticized "substantive due process" as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase "green pastel redness," and was radically undemocratic because it allowed judges to impose substantive values on the political process. Ely argued that the courts should serve to reinforce the democratic process, not to displace the substantive value choices of the people's elected representatives.
The majority view supports substantive due process rights in a number of areas, including a majority of the Supreme Court. An alternative to strict originalist theory is advocated by Supreme Court Justice Breyer, one of the Court's firm supporters of substantive due process rights. Breyer believes the justices need to look at cases in light of how their decisions will promote what he calls "active liberty," the Constitution's aim of promoting participation by citizens in the processes of government. It's an approach that emphasizes "the document's underlying values" and looking broadly at a law's purpose and consequences rather than relying on a rigid overarching theory of judicial interpretation. Breyer has issued a judicious but powerful attack on the "originalist" approach, which relies primarily on a close reading of the text of a statute or the Constitution. Anticipating originalists' criticism that only their approach can prevent judicial subjectivity, Breyer forcefully illustrates the many constraints on subjectivity and shows that originalism is not as objective as they claim. Some references from the Founding Fathers suggest they assumed the Constitution was a living document: the use of broad and vague terms like "due process," "cruel and unusual," and the reference to "unenumerated rights of the people" in the Ninth Amendment.
And although originalism is fashionably linked to opposition to substantive due process rights, it is also arguable that fundamental liberties arguments are as much or more the originalist approach as an argument for fewer individual rights.
 Judicial review of substantive due process violations
When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts use two forms of scrutiny, or judicial review. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used. In order to pass strict scrutiny review, the law or act must be narrowly tailored to a compelling government interest. When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. Here a legitimate government interest is enough to pass this review. A law is more likely to survive constitutional challenges under rational basis scrutiny than under strict scrutiny.
 Explicit procedural guarantees in the U.S. Constitution
- Article One, Section 9:
- Article Three, Section 2:
- the right to a jury trial regardless of whether the crime occurred in a state or in another location
- The 5th Amendment:
- the right to a grand jury indictment in federal court, in capital and other "infamous" cases, except for members of the armed forces
- the prohibition of double jeopardy (prosecuting someone again for a crime on which a final judgment is already passed)
- the right to not testify against oneself (self-incrimination)
- the right to due process of law for life, liberty, and property (as enforced against the federal government)
- The 6th Amendment:
- in all criminal prosecutions:
- the right to a speedy and public trial in the state where the crime occurred
- the right to an impartial jury of one's peers
- the right to know the charges and evidence
- the right to confront and cross-examine opposing witnesses
- the right to compel witnesses to appear
- the right to counsel
- in all criminal prosecutions:
- The 7th Amendment:
- in civil trials in federal courts:
- the right to a jury in civil trials
- the guarantee that issues determined by a jury will not be redetermined by other courts in a manner contrary to the common law
- in civil trials in federal courts:
- The 14th Amendment, Section 1:
- the right to due process of law regarding life, liberty, and property (as enforced against State governments)
 Broader or non-explicit Constitutional sources of liberties used by the Supreme Court
- The 5th Amendment and 14th Amendment:
- the right to "due process" in its substantive role referring to certain limits of government on infringing historical and inalienable natural rights of individuals
- The 5th Amendment and 14th Amendment:
- "privileges and immunities" - if these are not superfluous and not a repetition of the liberties in the Bill of Rights, what rights do "privileges and immunities" include?
- The Implicit in Ordered Liberty Approach
- The Penumbra Approach
- The 9th Amendment:
- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
- Main article: Incorporation of the Bill of Rights
Incorporation is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's Due Process Clause. Although incorporation started with Gitlow v. New York (1925), a First Amendment case, it really began in earnest in the 1940s and 1950s. Justice Hugo Black famously favored the jot-for-jot incorporation of the entire Bill of Rights. Justice Felix Frankfurter, however—joined later by Justice John M. Harlan—felt that the federal courts should only apply those sections of the Bill of Rights whose abridgment would deny a "fundamental right." It was the latter course that the Warren Court of the 1960s took, although, in the end, almost all of the Bill of Rights was incorporated against the states.
The basis for incorporation is substantive due process, and the role of that doctrine in applying the guarantees of the Bill of Rights to the states is just as notable as its use in defining new fundamental rights that are not explicitly guaranteed by the Constitution's text. In both cases, the question is whether the right asserted is "fundamental," which means that just as not all proposed "new" constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states. Some argue that the Privileges or Immunities Clause of the Fourteenth Amendment would be a more appropriate textual source for the incorporation doctrine (and possibly for the implied fundamental rights that substantive due process also protects), but the Supreme Court rejected that view in the 1873 Slaughterhouse Cases.
 External links
- The Little Word "Due" (from the Akron Law Review)
- Findlaw on the Development of Substantive Due Process Theory
- A Substantive Due Process Challenge to the War on Drugs, relevant sections at pages 2-3, 6, 11-12, 21-22, 29-30
- P.A. Madison's A Dummies Guide to Understanding the Fourteenth Amendment
- Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice - by Kevin A. Ring. ISBN 0-89526-053-0
- "Civil Rights, Congress's Power, and the New Federalism Video from American Constitution Society for Law and Policy
- "Covering: The Hidden Assault on Our Civil Rights" from Random House and "The Pressure to Cover: The New Civil Rights" By Kenji Yoshino, discussing the potential for liberty rights to overtake equality rights, New York Times Magazine, published January 15, 2006
- Active Liberty : Interpreting Our Democratic Constitution - by Stephen Breyer. ISBN 0307263134