Due Process

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


History and Scope

“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 feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just.”421 The content of due process is “a historical product”422 that traces all the way back to chapter 39 of Magna Carta, in which King John promised that “[n]o free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”423 The phrase “due process of law” first appeared in a statutory rendition of this chapter in 1354. “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.”424 Though Magna Carta was in essence the result of a struggle over interest between the King and his barons,425 this particular clause over time transcended any such limitation of scope, and throughout the fourteenth century parliamentary interpretation expanded far beyond the intention of any of its drafters.426 The understanding which the founders of the American constitutional system, and those who wrote the Due Process Clauses, brought to the subject they derived from Coke, who in his Second Institutes expounded the proposition that the term “by law of the land” was equivalent to “due process of law,” which he in turn defined as “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.”427 The significance of both terms was procedural, but there was in Coke’s writings on chapter 29 a rudimentary concept of substantive restrictions, which did not develop in England because of parliamentary supremacy, but which was to flower in the United States.

The term “law of the land” was early the preferred expression in colonial charters and declarations of rights, which gave way to the term “due process of law,” although some state constitutions continued to employ both terms. Whichever phraseology was used, the expression seems generally to have occurred in close association with precise safeguards of accused persons, but, as is true of the Fifth Amendment here under consideration, the provision 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.428

Scope of the Guaranty.—Standing by itself, the phrase “due process” would seem to refer solely and simply to procedure, to process in court, and therefore to be so limited that “due process of law” would be what the legislative branch enacted it to be. But that is not the interpretation which has been placed on the term. “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.”429 All persons within the territory of the United States are entitled to its protection, including corporations,430 aliens,431 and presumptively citizens seeking readmission to the United States,432 but States as such are not so entitled.433 It is effective in the District of Columbia434 and in territories which are part of the United States,435 but it does not apply of its own force to unincorporated territories.436 Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.437

Early in our judicial history, a number of jurists attempted to formulate a theory of natural rights—natural justice, which would limit the power of government, especially with regard to the property rights of persons.438 State courts were the arenas in which this struggle was carried out prior to the Civil War. Opposing the “vested rights” theory of protection of property were jurists who argued first, that the written constitution was the supreme law of the State and that judicial review could look only to that document in scrutinizing legislation and not to the “unwritten law” of “natural rights,” and second, that the “police power” of government enabled legislatures to regulate the use and holding of property in the public interest, subject only to the specific prohibitions of the written constitution. The “vested rights” jurists thus found in the “law of the land” and the “due process” clauses of the state constitutions a restriction upon the substantive content of legislation, which prohibited, regardless of the matter of procedure, a certain kind or degree of exertion of legislative power altogether.439 Thus, Chief Justice Taney was not innovating when, in the Dred Scott case, he pronounced, without elaboration, that one of the reasons that the Missouri Compromise was unconstitutional was that an act of Congress that deprived “a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”440 Following the war, with the ratification of the Fourteenth Amendment’s Due Process Clause, substantive due process interpretations were urged on the Supreme Court with regard to state legislation. First resisted, the arguments came in time to be accepted, and they imposed upon both federal and state legislation a firm judicial hand that was not to be removed until the crisis of the 1930s, and that today in non-economic legislation continues to be reasserted.

“It may prevent confusion, and relieve from repetition, if we point out that some of our cases arose under the provisions of the Fifth and others under those of the Fourteenth Amendment to the Constitution of the United States. Although the language of those Amendments is the same, yet as they were engrafted upon the Constitution at different times and in widely different circumstances of our national life, it may be that questions may arise in which different constructions and applications of their provisions may be proper.”441 The most obvious difference between the two Due Process Clauses is that the Fifth Amendment clause as it binds the Federal Government coexists with other express provisions in the Bill of Rights guaranteeing fair procedure and non-arbitrary action, such as jury trials, grand jury indictments, and nonexcessive bail and fines, as well as just compensation, whereas the Fourteenth Amendment clause as it binds the states has been held to contain implicitly not only the standards of fairness and justness found within the Fifth Amendment’s clause but also to contain many guarantees that are expressly set out in the Bill of Rights. In that sense, the two clauses are not the same thing, but, insofar as they impose such implicit requirements of fair trials, fair hearings, and the like, which exist separately from, though they are informed by, express constitutional guarantees, the interpretation of the two clauses is substantially, if not wholly, the same. Save for areas in which the particularly national character of the Federal Government requires separate treatment, this book’s discussion of the meaning of due process is largely reserved for the section on the Fourteenth Amendment. Finally, some Fourteenth Amendment interpretations have been carried back to broaden interpretations of the Fifth Amendment’s Due Process Clause, such as, for example, the development of equal protection standards as an aspect of Fifth Amendment due process.

421 Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Justice Frankfurter dissenting). 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).

422 Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).

423 Text and commentary on this chapter may be found in W. Mckechnie, Magna Carta: A Commentary On The Great Charter Of King John 375–95 (Glasgow, 2d rev. ed. 1914). The chapter became chapter 29 in the Third Reissue of Henry III in 1225. Id. at 504, and see 139–59. As expanded, it read: “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.” See also J. Holt, Magna Carta 226–29 (1965). The 1225 reissue also added to chapter 29 the language of chapter 40 of the original text: “To no one will we sell, to no one will we deny or delay right or justice.” This 1225 reissue became the standard text thereafter.

424 28 Edw. III, c. 3. See F. Thompson, Magna Carta: Its Role In The Making Of The English Constitution, 1300–1629, 86–97 (1948), recounting several statutory reconfirmations. Note that the limitation of “free man” had given way to the all-inclusive delineation.

425 W. Mckechnie, Magna Carta: A Commentary On The Great Charter Of King John (Glasgow, 2d rev. ed. 1914); J. Holt, Magna Carta (1965).

426 F. Thompson, Magna Carta: Its Role In The Making Of The English Constitution, 1300–1629 (1948).

427 Sir Edward Coke, Institutes Of The Laws Of England, Part II, 50–51 (1641). For a review of the influence of Magna Carta and Coke on the colonies and the new nation, see,e.g., A. Howard, The Road From Runnymede: Magna Carta And Constitutionalism In America (1968).

428 The 1776 Constitution of Maryland, for example, in its declaration of rights, used the language of Magna Carta including the “law of the land” phrase in a separate article, 3 F. Thorpe, The Federal And State Constitutions, H. Doc. No. 357, 59th Congress, 2d Sess. 1688 (1909), whereas Virginia used the clause in a section of guarantees of procedural rights in criminal cases. 7 id. at 3813. New York in its constitution of 1821 was the first state to pick up “due process of law” from the United States Constitution. 5 id. at 2648.

429 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856). Webster had made the argument as counsel in Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). See also Chief Justice Shaw’s opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857).

430 Sinking Fund Cases, 99 U.S. 700, 719 (1879).

431 Wong Wing v. United States, 163 U.S. 228, 238 (1896).

432 United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927).

433 South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966).

434 Wight v. Davidson, 181 U.S. 371, 384 (1901).

435 Lovato v. New Mexico, 242 U.S. 199, 201 (1916).

436 Public Utility Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920).

437 Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1 (1946). Justices Rutledge and Murphy in the latter case argued that the Due Process Clause applies to every human being, including enemy belligerents.

438 Compare the remarks of Justices Chase and Iredell in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388–89, 398–99 (1798).

439 The full account is related in E. Corwin, Liberty Against Government ch. 3 (1948). The pathbreaking decision of the era was Wynhamer v. The People, 13 N.Y. 378 (1856).

440 Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857).

441 French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).