The concept of due process is a cornerstone of legal systems, ensuring that the state applies all established legal rules and principles with unwavering adherence. It's the bedrock upon which individual rights are balanced against the immense power of the law of the land, acting as a shield for the individual against arbitrary governmental action. When the government oversteps its bounds, failing to follow the precise dictates of the law, it commits a violation of due process, an offense that fundamentally undermines the rule of law.
This principle has, over time, been interpreted to extend beyond mere procedural fairness. It has been understood to place limits on the very substance of laws and legal proceedings, empowering judges, rather than solely legislators, to define and safeguard fundamental notions of fairness, justice, and liberty. This expansion of due process, known as substantive due process, has not been without its detractors, sparking considerable debate. In essence, it’s a command that the government must not act unfairly or inflict undue harm, whether physical or psychological, upon its people. While the term "due process" itself isn't a common fixture in contemporary English law, analogous concepts like natural justice—which typically applies to administrative decisions and certain private bodies—and the British constitutional ideal of the rule of law, championed by figures like A. V. Dicey, echo similar sentiments. However, these English concepts don't perfectly align with the American interpretation of due process, which, as we'll see, encompasses a broader spectrum of implied rights absent in their English predecessors.
Magna Carta and the Seeds of Due Process
The genesis of due process can be traced back to clause 39 of the Magna Carta, a pivotal document in English legal history. In 1215, John of England pledged: "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." This charter, in its entirety, became part of the "law of the land," and a subsequent clause even established a council of 25 barons to ensure the King adhered to its provisions. Thus, the rule of law was firmly established, binding the monarchy to the established legal framework and restricting its ability to arbitrarily alter the law. It's worth noting that in the 13th century, the scope of "freeman" might have been more narrowly defined, potentially excluding the common peasantry.
Over the ensuing centuries, monarchs reissued shorter versions of the Magna Carta, and clause 39 was renumbered as clause 29. It wasn't until 1354, during the reign of Edward III of England, that the phrase "due process of law" explicitly appeared in a statutory rephrasing of the Magna Carta: "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."
The esteemed English jurist Edward Coke, in his 1608 treatise, delved into the meaning of Magna Carta. He expounded that deprivation could only occur by legem terrae, the law of the land, which he clarified encompassed the common law, statute law, and customs of England—essentially, the "due course, and process of law."
This principle was further elucidated in 1704 by the Queen's Bench in the case of Regina v. Paty. The court examined a situation where the British House of Commons had, without judicial sanction, imprisoned individuals for pursuing legal action. In his opinion, Justice Littleton Powys articulated that the "law of the land" was not restricted to the common law but included all laws in force within the realm. He further explained that the statute of 28 Edward III, chapter 3, had clarified the lex terrae of Magna Carta with the phrase "due process of law," signifying that all commitments must stem from a legal authority, and crucially, that the law of Parliament itself was a superior law.
However, Chief Justice Holt dissented, arguing that the House of Commons' actions, undertaken without the consent of the British House of Lords, lacked proper legal authority. Despite this dissent, the Queen's Bench ruled that due process had not been violated. Ultimately, John Paty was freed when Queen Anne prorogued Parliament.
Divergence of English and American Law
For centuries, English law and legal scholarship recognized various requirements as integral to "due process" or the "law of the land." These were generally understood as existing legal necessities rather than inherent qualities of due process itself. As the Supreme Court of the United States observed, a British due process requirement was often presented as an example of existing practice, not a fundamental constitutional mandate. The scattered references to "due process of law" in English law, it seems, failed to retain their robust vitality, a phenomenon attributed by scholars like John V. Orth to the ascendance of parliamentary supremacy and a concurrent skepticism towards judicial review.
While some interpretations of Lord Coke's ruling in Dr. Bonham's Case hinted at the possibility of judicial review, by the late 19th century, figures like Lord Campbell dismissed such notions as "foolish doctrine." Without the power to invalidate Acts of Parliament as violations of due process, English courts were limited in their ability to check legislative power. The divergence with American law became pronounced. In the United States, judges grew increasingly assertive in enforcing due process, while the legislative and executive branches learned to navigate these constraints by aligning their actions with judicially determined constitutional requirements.
An English political science professor, writing in 1977, highlighted this divergence for American legal professionals, noting the "elusiveness" of "due process of law" in English legal texts. Contemporary English law features concepts like natural justice and the rule of law, but neither perfectly mirrors the American conception, which has evolved to include a wider array of implied rights.
Due Process in the United States
The Fifth and Fourteenth Amendments to the United States Constitution both prominently feature a Due Process Clause. This clause serves as a crucial safeguard against the arbitrary deprivation of life, liberty, or property by the government, ensuring that such actions are sanctioned by law. The Supreme Court of the United States has interpreted these clauses to provide four key protections: procedural due process (governing both civil and criminal proceedings), substantive due process (limiting the content of laws themselves), a prohibition against vague laws, and serving as the mechanism for the incorporation of the Bill of Rights against the states.
International Perspectives
While the specifics can be nebulous, the principle of due process is recognized in various forms under customary international law. Nations generally agree on the obligation to provide foreign visitors with a basic standard of justice and fairness. Some argue that aliens should only be afforded the same rights as citizens, a doctrine known as national treatment, meaning both are subject to the same governmental deprivations. However, with the expansion of international human rights law and the increasing use of treaties to govern the treatment of foreign nationals, this distinction may be diminishing in practice.