DEFINITION of '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.

BREAKING DOWN 'Due Process'

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.

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 that, “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.

Due Process in the United States

In the United States, due process is outlined in both the Fifth and Fourteenth 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, substantive due process, protection from vaguely written laws, and the incorporation of the Bill of Rights. Courts have taken an assertive approach to upholding due process, which has resulted in the executive and legislative branches of government adjusting how laws and statutes are written. Laws written specifically to not violate due process are those that are least likely to be struck down by the courts.

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 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 Fifteenth Amendment extends the Takings Clause to state and local governments.

RELATED TERMS
  1. Eminent Domain

    Eminent domain is the power the US government, states and municipalities ...
  2. Market Value Clause

    A market value clause is an insurance policy clause assigning ...
  3. Hedge Clause

    A hedge clause is a clause in a research report that attempts ...
  4. Civil Authority Clause

    A civil authority clause is an insurance clause outlining coverage ...
  5. Contingency Clause

    A contingency clause is a contract provision that requires a ...
  6. Distribution Clause

    A distribution clause is a type an insurance policy provision ...
Related Articles
  1. Investing

    It's Not Illegal If The Government Does It

    The government allows itself the leeway to do many things that would be illegal for a private citizen or corporation.
  2. Personal Finance

    Why Your Will Needs a 'Titanic Clause'

    If you don't have a Titanic clause in your will and disaster strikes, there's no guarantee that your intended beneficiaries will inherit your assets.
  3. Retirement

    Ready to Retire? Here's How to Sell and Close Your Small Business

    Learn the essential steps to prepare to sell your business with the best possible outcome, a secure retirement for you and your family.
  4. Insights

    Government Regulations: Do They Help Businesses?

    These rules are in place to protect consumers and help businesses thrive at the same time.
  5. Tech

    Is the Payment Processing Industry Evolving? (PYPL, TGT)

    Learn about the many changes in commerce and payment systems that are happening in the rapidly evolving payment processing industry.
  6. Insights

    A Short History of the US Federal Trade Commission

    Since the early 1900s, the Federal Trade Commission has preventing anticompetitive, deceptive, and unfair business practices.
  7. Taxes

    Terms & Conditions - Investopedia.org 2018 Grant Agreement

    These are the terms and conditions for Investopedia.org's 2018 grant agreement.
  8. Personal Finance

    Donald Trump’s Big Lie About the Law That ‘Threatens’ Christians

    The self-identified Presbyterian calls those who embrace the best known teachings of Jesus "schmucks."
  9. Insurance

    Life Insurance Clauses Determine Your Coverage

    Understanding these key parts of your policy will help you to ensure that your family will be covered.
RELATED FAQS
  1. Can state and local governments in the US run fiscal deficits?

    Discover why most state and local governments do not – or cannot – run fiscal deficits in the same manner as the U.S. federal ... Read Answer >>
  2. Which amendment made income tax legal?

    The government drafted the 16th Amendment stating, "The Congress shall have the power to lay and collect taxes on incomes, ... Read Answer >>
  3. How does the law of supply and demand affect the housing market?

    Learn about the law of supply and demand, the relationship between supply and demand, and how it affects the housing market. Read Answer >>
Trading Center