SOURCE:  http://faculty.ncwc.edu/mstevens/410/410lect06.htm


When someone speaks of due process, or receiving their "due", they are usually talking about something that they feel is rightly entitled to them. In fact, that is precisely the historical meaning of due process. Ever since antiquity, every society has had some concept of it. That's because the notion of due process varies from society to society. The basic idea remains constant, but how much a person feels rightly entitled to depends on the historical and cultural context in which they live. Due process is tied to custom, which can vary even among regions or localities within a nation. Customs are the regular habits and non-religious rituals of a local people. Customs along with folkways (proverbs and symbols) and norms (guides for behavior) make up the sociological definition of culture. The extent of due process among the customs of a people is the hallmark of a civilized or decent society. Due process generally refers to the regularity, fairness, equality, and degree of justice in both procedures and outcomes.

The ancient Egyptians, for example, required judges to hear at least both sides of a case. The Code of Hammurabi is a type of due process -- something written down so people would know what the laws are. Even the ancient Chinese had some minimal procedures for notice and hearing when people were charged with something.  When Jesus was put on trial, He was given the opportunity to reply and present evidence. The Greeks and Romans offered juries and professional orators. In most cases, these were not formal processes; they were the unwritten rules of justice as fairness. They started as customs and became law over time.

The idea of due process in law seems to have emerged only in societies which practiced the accusatorial, or adversary, system. Societies which practiced the inquisitorial system kept people in jail for long periods of time without letting them know the charges, and suspects were often compelled to confess or testify against themselves. The phrase "due process of law" was first used in England sometime during the 13th or 14th century as synonymous for "law of the land", hence, it was made part of the common law and given a natural law interpretation. The American colonists seized upon the phrase, incorporating it into all the state charters and almost every document surrounding the American revolution and Constitutional Convention. Historical records from those time periods seem to indicate the founding fathers thought of due process as fairness. 

Fairness is the idea of doing what's best. It may not be perfect, but it's the good and decent thing to do. It requires being level-headed, uniform and regular, when all around you is prejudice, corruption, or the desire of an angry mob to see justice done. Fairness requires breadth and depth. Not only does the outcome have to be fair, but so does everything along the line such as evidence gathering and presentation. Fairness is difficult to put in the form of strict legal rules and principles that cover every situation. Which is fairer?

  •  A system of rules so strict that even a few innocent people get unfairly punished

  •  A system not so strict that even a few guilty people go unfairly unpunished

Due process of law holds that the second answer is more correct, for many reasons. On a practical level, there's less of a danger to the whole legal system. If your system is convicting a few innocent, chances are it's railroading many of the guilty, so you've got two problems on your hands -- those who are falsely imprisoned and those who have a stronger habeas corpus claim. If your system is letting a few guilty slip through, chances are that those lucky evil-doers might change their ways, or in any case, law enforcement or informal methods of social control can pick up the slack. However, on the more important theoretical level, it depends on what kind of system you want to have -- one that just rolls over people indiscriminately -- or one that is individualized and takes into account the need for your society to expand freedom. The U.S. Constitution guarantees due process because it's designed to be a "living document" that expands freedom. Let's look at a few ways it does this:

Definition of Due Process: the exercise of government power under the rule of law with due regard for the essential and fundamental fairness rights of individuals
PROCEDURAL DUE PROCESS - how the law is just; source of fairness in the Constitution; decided mostly through Balancing Tests of interests and consideration of error; related to concept of legitimacy; interpretation is the whole phrase "without due process of law" activating the term "without" SUBSTANTIVE DUE PROCESS - why the law is just; related to concept of legality; source of fairness beyond the Constitution; decided mostly through Fundamental Rights/Compelling Need Tests; interpretation is the phrase "due process of law" as a continuation from  life, liberty, and property

Rule of law refers to the rules being announced beforehand. Essential and fundamental fairness refers to how important something is for maintaining democracy. Legitimacy refers to how fairly the legal system is perceived. Legality refers to how extensive the legal system is. With the exception of the ex post facto clause, the Constitution is mostly concerned with procedural due process, but for every fundamental freedom, there's a larger freedom involved.   




freedom of assembly freedom of association
freedom to vote freedom to participate
freedom to travel freedom of movement
freedom from search & seizure freedom of privacy
freedom of property freedom to enjoy
freedom from bodily invasion freedom of choice
etc., etc., etc...etc., etc., etc.. etc., etc., etc...etc., etc., etc..

DUE PROCESS is also related to the incorporation debate since it's mentioned in both the Fifth and Fourteenth amendment. For review purposes, let's look again at the two places due process is mentioned in the Constitution:

  • Fifth Amendment -- No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law
  • Fourteenth Amendment -- All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law

If you were to file a due process claim, which clause would you use - the Fifth or Fourteenth? Well, I've said previously that I think the Fifth is more about substantive due process and the Fourteenth is more about procedural due process, but that's just my interpretation. The correct answer is it depends on your interpretation, and most importantly, your stance toward incorporation, how much of the Bill of Rights is covered by the Fourteenth Amendment. Remember that the Fifth was only intended to apply toward the federal government, but the Fourteenth made it binding on the states.

  1. Total Incorporation View - Due Process is shorthand for the first 8 amendments, the whole Bill of Rights. Due process is both a fundamental right and part of essential fairness which permeates the whole Constitution.
  2. Selective Incorporation View - Due Process refers to how those explicit fundamental and essential rights are protected. It may also refer to implicit rights, not mentioned in the Constitution, so fundamental and essential that they should not be tampered with nor encroached upon unless there is a compelling need to do so.

Selective incorporation (Number 2) treats due process almost the same as equal protection. However, there's no equal protection clause in the Fifth Amendment. Equal protection is all about discrimination claims, so if selective incorporation is your viewpoint, you would file your claim of racial or sexual discrimination under the Fifth (because you don't want to take any chances on the justices' view toward incorporation; a conservative Court might find some new states' right under the privileges and immunities clause of the Fourteenth). So, that's what most lawyers do -- they file their due process claims under the Fifth, making sure they have federal involvement, and argue that not only were one or more of the specifically outlawed procedures in the Fifth violated, but the whole process substantively violated the principles of essential and fundamental fairness, triggering a shift in the burden of proof to the side of the State to show a compelling need. Of course, there are attorneys who file just as many similar claims under the Fourteenth. It doesn't depend on the type of case, and there's lots of overlap, as the following table shows:


Cases Filed Under the Fifth

Cases Filed Under the Fourteenth

affirmative action cases affirmative action cases
death penalty cases abortion cases
discrimination cases assisted suicide cases
double jeopardy cases discrimination cases
fair trial cases fair trial cases
Grand jury cases intrusions into human body cases
just compensation cases minority set-asides
privacy cases privacy cases
self-incrimination cases political representation cases
sentencing enhancement cases right to refuse medical treatment cases

A moment ago, the phrase "shifting the burden of proof" was mentioned. That's because due process is closely associated with evidentiary proceedings. Evidence is that area of criminal justice which comes closest to connecting fairness in procedure with fairness in outcome. The most basic rule of evidence is that the State bears the burden of proving . Unless and until that burden is carried by the State, the accused enjoys a presumption of innocence. This presumption is not a right, but a privilege that is attached to the way various "burdens" are laid out in evidence law. There are three burdens and a related concept that are relevant here:

  • burden of proof -- this determines who wins the trial on a particular issue if the jury or other fact-finder cannot reach a decision one way or the other. 

  • burden of persuasion -- this determines who must convince the judge or jury on a particular issue

  • burden of going forward -- this determines who has the duty of providing sufficient evidence for the court to take the issue seriously enough to make it subject to debate

  • standard of proof -- this means that whomever has the burden of persuasion on the ultimate issue of guilt or innocence must prove their points beyond a reasonable doubt. 

Notice that it's possible to win or lose the trial on points but still lose or win the outcome. That isn't much consolation to someone convicted and sentenced to twenty years in prison, but it becomes of paramount importance when you consider all the twists and turns that an actual trial takes with, for example, a self-defense claim or an insanity defense.

In the self-defense case, witnesses and evidence will be presented on both sides. Suppose there's an equal number of witnesses and evidence on each side, and the jury deadlocks on the self-defense issue. Well, whomever raised the self-defense issue in the first place has the burden of persuasion, and this is most likely the defense, so the defense loses the point of self-defense. However, the defense still wins the trial because the burden of proof is on the prosecution side to prove an absence of self-defense, and they haven't done that either because the jury is deadlocked. This is a classic example of how the burden of proof settles all ties. 

Things aren't always in favor of the defendant. It depends upon the flow of argument and which issues and "truths" come up during a trial, and by whom. With the insanity example, it used to be the state had the burden of proving the defendant was NOT insane, but most states now use a method by which the defense has the burden of proof and the prosecution a burden of nonpersuasion. There's all kinds of ways an insanity defense can twist and turn so that the defense winds up winning some points but losing the verdict. 

Everything mentioned above about "burdens" and "proof" is intended to illustrate how rules of evidence are examples of procedural due process mixed with substantive due process. Being factually guilty is one thing; being legally guilty is another, and the rules are designed with fairness to each point of view in mind. Virtually every rule of evidence affects the outcome of the case, so it's substantive; but virtually every rule of evidence is about procedure, so it's procedural. The closest thing to substantive due process in the whole of criminal justice procedure is the standard of proof, and that's only because beyond a reasonable doubt is a tough standard. 

So, how is freedom expanded by due process? The answer is that it's easy to spot bad procedure. Whether or not it made a substantive difference in the outcome is debatable, and a matter of good faith and reconciliation of error. If only the procedure is bad, the case can be remanded for a new trial with better procedure. If the substantive due process is bad, a judicial reversal occurs. The substantive part can be enforced independently of the procedural part, giving appellate and Supreme courts the power to strike down all sorts of decisions simply because the verdict is undesirable for some reason. Nothing in the Constitution, outside the Commerce Clause, concentrates such power in any one branch of government. It's a way of bringing states and municipalities up to the federal level, and also a way of signaling which local customs are deemed most desirable. There's nothing to prohibit the states and municipalities from experimenting, and it's those judicial experiments in due process that potentially open the door to newfound freedoms.

Postscript: Some restorative justice processes, like arbitration, mediation, and alternative dispute resolution require an admission of guilt, others a declination to deny guilt, and still others some acceptance of liability. In this sense, restorative justice may compromise the accused's right to a presumption of innocence. The problem with these dispute and mediation centers may be that they are too non-traditional in terms of the role that due process plays. Some counseling sessions may more closely resemble the inquisitorial system.

American Civil Liberties Union

Encarta Encyclopedia Definition of Due Process

Lectric Library's Mini-Outline on Due Process

USconstitutionNet's Page on Due Process

UN Declaration of Human Rights Website

Fletcher, G. (1998) Basic Concepts of Criminal Law. NY: Oxford Univ. Press.
Gora, J. & F. Haiman (1991) Due Process of Law. NY: American Civil Liberties Union.
Hoebel, E. (1967) The Law of Primitive Man. NY: Oxford Univ. Press.
Keynes, E. (1996) Liberty, Property, and Privacy: Toward a Jurisprudence of Substantive Due Process. University Park: Pennsylvania State Univ. Press.
Maine, H. (1975) Dissertations on Early Law and Custom. NY: Ayer Publishers.
Maine, H. (2000) Ancient Law.  Indianapolis: Beard Books.
McGehee, L. (1981) Due Process of Law under the Federal Constitution. NY: William Hein & Co.
Mott, R. (1973) Due Process of Law. Indianapolis: Da Capo Press.
Nader, L. and H. Todd (1978) The Disputing Process: Law in Ten Societies. NY: Columbia Univ. Press.
Sadler, G. (1986) Relation of Custom to Law. NY: Fred Rothman & Co.

Last updated: 06/25/03
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