What Is Due Process?

Due process is a requirement that legal matters be resolved according to established rules and principles, and that individuals be treated fairly. Due process applies to both civil and criminal matters.

In countries with developed legal systems, individuals expect that the rights enshrined in their constitutions will be applied to them fairly. This expectation—of due process—outlines the relationship individuals expect to have with their local, state, and federal governments; specifically, that the rights of the individual will not be violated.

Key Takeaways

  • Due process requires that legal matters be resolved according to established rules and principles and that individuals be treated fairly.
  • The origin of due process is often traced back to the Magna Carta, a 13th-century document that outlined the relationship between the English monarchy, the Church, and feudal barons.
  • In the U.S. due process is outlined in both the Fifth and 14th amendments.
  • One example of due process is the use of eminent domain.

Understanding the History of Due Process

The origin of due process is often traced back to the Magna Carta, a 13th-century document that outlined the relationship between the English monarchy, the Church, and feudal barons. The document referred to as a charter (carta means charter in medieval Latin), sought to address many economic and political grievances that barons had with the monarchy. In one of its clauses, the king promised: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, 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 king was thus prevented from arbitrarily changing or ignoring laws, with the Magna Carta establishing the rule of law that the monarchy must follow.

Due process continued to be a part of British law for centuries after the signing of the Magna Carta, but the relationship between parliament and the courts limited its application in practice. The courts did not have the power of judicial review, which would have allowed them to determine whether government actions violated the rule of law, and thus could not always enforce due process. Judges could not be as assertive in defending due process in the face of parliamentary action, with the opposite holding true in the United States.

Types of Due Process in the United States

In the United States, due process is outlined in both the Fifth and 14th amendments to the Constitution. Each amendment contains a due process clause, which prohibits the government from taking any action that would deprive a person of “life, liberty, or property without due process of law." The due process clause provides several types of protection.

Procedural Due Process

Procedural due process requires that when the federal government acts in a way that denies a citizen of a life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by a neutral decision-maker.

Substantive Due Process

Substantive due process is a principle allowing courts to protect certain fundamental rights from government interference, even if procedural protections are present or the rights are not specifically mentioned elsewhere in the U.S. Constitution. Due process in the U.S. also protects individuals from vaguely written laws and incorporates the Bill of Rights.

Courts have taken an assertive approach to uphold due process, which has resulted in the executive and legislative branches of government adjusting how laws and statutes are written. Laws that are explicitly written not to violate due process are those that are least likely to be struck down by the courts.

Real-World Example

An example of due process is the use of eminent domain. In the United States, the Takings Clause of the Fifth Amendment prevents the federal government from seizing private property without notice and compensation. While the use of an eminent domain is granted to the federal government, if it wants to use a parcel of land to build a new highway it will have to (typically) pay fair market value for the property. The 14th Amendment extends the Takings Clause to state and local governments.