Due Process

What Is Due Process?

Due process rights are set out in the U.S. Constitution. The Fifth Amendment stipulates that the federal government must follow due process. The Fourteenth Amendment puts the same obligation on states. The central protections of due process are that individuals are guaranteed certain liberties and, second, that the government must follow clear, transparent, and fair procedures before depriving a citizen of life, liberty, or property.  

The concept of due process traces its origins to King John’s Magna Carta, which provides that no freeman will be seized, dispossessed of his property, or harmed except “by the law of the land,” an expression that referred to customary practices of the court. The phrase “due process of law” first appeared as a substitute for the Magna Carta’s “law of the land” in a 1354 statute of King Edward III that restated some of Magna Carta’s guarantees. The due process clause in the Fifth and Fourteenth Amendments of the U.S. Constitution is based on these principles.  

Due process comes in two categories: procedural and substantive. Procedural due process refers to the rules that describe how government actions are carried out. For instance, as we discuss in our policy brief on eminent domain (linked in further reading), if the government wants to take a citizen’s property to build a park, they have to pay the market value for the land and allow the citizen to go to court to stop the action. Similarly, when someone is arrested, the government cannot simply put them in jail for a long time; rather, they must hold a trial and let a citizen jury or a judge determine the suspect’s guilt or innocence. Substantive due process, on the other hand, includes a range of rights, including the right to privacy, to marry (including same-sex marriage), to use contraception, and a parent’s right to make decisions about their children’s lives. Gender transition therapy, surgery, and affirmation care (both mental health and non-medical intervention) have been a recent focus of public debate related to parental rights.  

How Are Due Process Claims Decided?  

The right to due process is upheld chiefly through federal, state, and local courts. Judges protect due process by ensuring that individuals receive fair notice, an opportunity to be heard, and a fair and impartial hearing. If there is evidence that due process has not been conducted, the courts can and often will throw out an entire case. Additionally, by interpreting and applying the Fifth and Fourteenth Amendments, the courts safeguard individuals’ due process rights.

There are limitations on due process. This right does not mean the government cannot do things citizens oppose. For example, as we discuss in our Eminent Domain Brief, the government can confiscate a citizen’s property if it provides fair market compensation and can show that doing so serves a public purpose. In addition, the courts have acknowledged that certain rights are not absolute and may be restricted under specific circumstances. For example, while police officers are required to advise suspects of their right to remain silent and to have a lawyer present during questioning (the so-called Miranda rights), the courts have allowed a public safety exception, where law enforcement may question a suspect without informing them of their rights when there is an imminent danger to public safety.

What Are The Drawbacks To Due Process?

One notable drawback is the potential for longer than expected and expensive legal proceedings. Due process involves extended legal procedures, often resulting in delays and increased costs for individuals and for the government. Another drawback arises from inconsistency in the application of due process. Different courts or adjudicatory bodies may interpret and apply due process principles in varying ways, leading to inconsistent outcomes. Such inconsistency can erode public trust in the fairness of the legal system.

Additionally, the emphasis on procedural fairness in due process sometimes overshadows substantive justice. The procedural rules may require courts to focus on formalities and technicalities rather than addressing the underlying merits of a case. For instance, a person accused of a crime might be acquitted due to a procedural error, even if there is compelling evidence of guilt.

Is Due Process A Right In Other Countries?

Due process exists in most countries, although the procedural rights given to individuals and the specific rights protected under substantive due process vary across nations. In some countries, such as China and North Korea, due process is guaranteed by constitutions but does not exist.

‍

One way to measure the strength of due process rights in a country is with the V-Dem (Varieties of Democracy) Liberal Democracy scale. Each country is assigned a value between 0 and 1 (higher means more due process) based on the judgment of expert scholars. The figure above shows the due process scale values for members of the G7 (Canada, France, Germany, Japan, Italy, United Kingdom, and the United States), three authoritarian states (China, North Korea, and Russia), and three Scandinavian countries (Finland, Norway, and Sweden). As the figure shows, the G7 nations have roughly the same due process rights, with the Scandinavian countries somewhat higher and the authoritarian countries much lower.  

‍