Due Process: The Law of the Land

Due Process defies definition, but those accustomed to its worth reapply its eternal principles in the never-ceasing stream of new circumstances.

The human mind, however, is consistently subtle in crafting modern devices to violate ancient rights of due process. The ideal, nevertheless, remains.

The Supreme Court defines due process by telling us how to recognize its violation: "Due process is violated if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

"It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feeling of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Proces is that which comports with the deepest notions of what is fair and right and just."

Solebee v. Balkcom, 339 U.S. 9, 16 (1950) (Justice Frandfurter dissenting.)

The written ideals of due process are "an historical product" that trace back to chapter 39 of Magna Carta and further back as unwritten custom. Chapter 39 of Magna Carta became chapter 29 and then was expanded in the Third Reissue of Henry III in 1225:

• No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land.

The 1225 reissue also added to chapter 29 the original text of chapter 40: "To no one will we sell, to no one will we deny or delay right or justice."

The phrase due process of law first appeared in 1354 in a statutory rendition of chapter 29: "No man of whatever 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."

Though the essence of the Magna Carta emerged out of a struggle between King John and England's barons, over time its Due Process Clause overflowed the banks of the stream of Magna Carta; throughout the fourteenth century, parliamentary interpretation expanded the application of due process.

The Framers of the Fifth Amendment's Due Process Clause derived their understanding largely from Lord Coke. In his Second Institutes, Coke said that the term by law of the land equaled "due process of law," which he in turn defined "by due process of the common law," that is "by the indictment or presentment of good and lawful men . . . or by writ original of the Common Law."

To Coke the essence of both due process and law of the land was procedural. Though Coke's writings on chapter 29 included rudimentary concepts of substantive restrictions, these never develop in England because of parliamentary supremacy, but did take root in the United States.

The phrase "law of the land" was early the preferred expression in colonial charters and declarations of rights, which gave way to the phrase "due process of law"; although some state constitutions continued to use both terms. Regardless of which of the two phrases was used, the concept was the same: precise and strictly-adhered-to processes meant to safeguard the life, liberty, and property of defendants. Due process also suggests some limitations on substance because of its association with the guarantee of just compensation upon the taking of private property for public use. The 1776 Constitution of Maryland, for example, in its Declaration of Rights, used the language of Magna Carta, including the phrase "law of the land," in a separate article; whereas Virginia used the language of Magna Carta in a section of guarantees of procedural rights in criminal cases. New York, in its Constitution of 1821, became the first State to pick up the phrase "due process of law"" from the United State Constitution.

Standing alone, the phrase, "due process" seems to refer solely and simply to procedure, process in court, and a matter of precut form that must be followed in every case. If such were the case, "due process of law" could be reduced to positive law: whatever the legislative branch enacted it to be. Such, however, is not the interpretation that the common-law tradition has placed on the phrase:

• It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process "due process of law" by its mere will. Murray's Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 276 (1856).

The Supreme Court has limited the application of American constitutional due process by raw territoriality. For example, all persons within the territorial boundaries of the several United States are entitled to the protections of due process, including corporations, aliens, and presumptively, citizens seeking readmission to the United States, but States as such are not so entitled. Constitutional due process is effective in the District of Columbia and by its own force to unincorporated territories, such as Guam. The Supreme Court, however, has held that constitutional due process does not reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.

However, constitutional restraints of law meant for government and courts is never enough to insure limitation of government, unless folks persist in demanding such limitations. "Paper rights" are only worth what the one suffering their violation, thinks they are worth.

Copyright © 2008 by Brent Winters