Due process
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.
Many nations recognize some form of due process under customary international law. Though the specifics are not clear, there has been general 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.
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 14th Amendment contains the same verbiage expressly applied to the States. The Supreme Court has decided to interpret the two clauses identically, so under the federal Constitution, there is no 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.
The Due Process Clause of the U.S. Constitution is descended from a similar clause of the Magna Carta in which the King of England agreed (in the year 1215 A.D.) that "No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his peers, or by the Law of the Land." Thus, the core historical meaning of the Due Process Clause is that the government cannot deprive anyone if the Law of the Land forbids it. In other words, neither the King nor an American President may take away your life, liberty, or property if the law denies him that power.
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 by Magna Carta. As a limitation on Congress, the Due Process Clause has been interpreted by the majority of 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 U.S. Supreme Court considerable power to strike down state and federal statutes in order to legalize crimes that a majority of the judges don't think should have been criminalized in the first place.
Procedural due process is essentially based on the concept of procedural 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, fair procedures help to ensure that an accused person will not be subjected to cruel and unusual punishment, which occurs when an innocent person is wrongly convicted.
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 (see below). However, when the Constitution has not laid out the specific procedures that must be followed in other government proceedings, due process provides a minumum 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 protections provided by the Eighth Amendment to the United States Constitution, which protects innocent people from being punished.
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 hauled 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.
The main articles of the Constitution as well as the other amendments in the Bill of Rights contain many specific procedural guarantees that go beyond minimal due process, particularly in the context of criminal prosecution (see bottom of article for complete list). Though the Bill of Rights was originally written to limit only the power of the federal government, the Supreme Court has ruled that most of its guarantees are ensured against the States by the 14th Amendment's Privileges and Immunities clause as integral to federal citizenship, or a necessary part of the liberty protected by the Due Process Clause (see substantive due process below). Whichever clause has been used as justification, these rights have been held to be incorporated by the Fourteenth Amendment as a limitation on State power. Two exceptions are the Fifth Amendment right to an indictment by a grand jury and the Seventh Amendment right to a jury trial in civil lawsuits, which have been ruled to only apply in federal courts.
Incorporation has applied most of the substantive rights of the Bill of Rights to the States as well. The doctrine of Incorporation is the only legal reason why, for example, States must recognize the First Amendment protections of freedom of speech or religion regardless of whether their own State laws and constitutions offer comparable protections. The only exceptions to Incorporation of the substantive rights in the Bill of Rights--the Second Amendment right to bear arms, the Third Amendment right not to have soldiers quartered in one’s home, and the Eighth Amendment prohibition on excessive bail and fines--are provisions that the Supreme Court has not definitively ruled on. Many lower federal appellate courts have ruled that these rights have been Incorporated, however.
Though on its face, the idea that due process is not only procedural but substantive seems paradoxical, the boundary between substance and procedure is in fact far from exact. The Supreme Court has held for most of its history that due process must include limits not only on how laws are passed or enforced, but on what kind of laws may be imposed by majorities upon minorities and individuals. The court has consistently viewed the due process clause as embracing those rights that are "implicit in ordered liberty." Just what these rights are is not always clear. Throughout the court's history, substantive due process has protected such uncontroversial rights as marriage and raising children, and the extension of much of the Bill of Rights over the States. However, what are seen as past abuses and present excesses of this doctrine continue to spur debate over its use.
The idea of substantive due process is not descended from the Magna Carta, as Magna Carta was understood by the statesmen who wrote the American Bill of Rights. James Madison explained as follows, when he proposed the Bill of Rights to Congress in 1789: "Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed." Magna Carta forbade the King from disobeying Parliament, and most people (including Madison) understood that Magna Carta did not forbid Parliament from doing anything.
Substantive due process has a checkered past in the U.S., as it was first applied by the Supreme Court in the infamous Dred Scott v. Sandford. Dred Scott was a slave who claimed that passing through territory in which slavery was prohibited destroyed his owner's property rights over him. However, the Supreme Court held that due process protections of property restricted certain types of laws that would take away property, not merely the procedure by which it was taken. After the Fourteenth Amendment applied due process restrictions to states, the Supreme Court used it to find a freedom of contract to routinely strike down economic and labor regulations, as in Lochner v. New York.
As judges became more deferential to legislative judgment in the area of commerce, substantive due process shifted away from upholding laissez faire economics to recognizing individual rights. This has included the Incorporation of most of the Bill of Rights under the Fourteenth to apply to the laws and actions of States, as well as the recognition of rights concerning family and privacy not elsewhere in the text of the Constitution, but still considered integral to liberty. Substantive due process has notably been invoked to invalidate laws in such areas as contraceptives in Griswold v. Connecticut and abortion in Roe v. Wade, and most recently in Lawrence v. Texas regarding the rights of homosexuals to sexual intimacy.
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 are much more concerned with what, based on tradition and history, should be embraced under such protections of liberty rather than whether there are such unspoken guarantees in the Constitution. In other words, the main debate in recent decades over substantive due process is simply where to apply it, not whether it should be applied at all.
International Due Process
Due Process in the United States
Procedural Due Process
Personal Jurisdiction
Incorporation
Substantive Due Process
Explicit Procedural Guarantees in the U.S. Constitution