Due process clause

Dear colleagues,

What is the due process clause that is mentioned as fourteenth amendment of due process clause. Is it constitution of one of the federal states of USA or constitution in general?


Due process (more fully due process of law) is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land, instead of respecting merely some or most of those legal rights. In the laws of the United States (U.S.), this principle gives individuals a varying ability to enforce their rights against alleged violations thereof by governments. Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to guarantee fundamental fairness, justice, and liberty. The latter interpretation is analogous to the concepts of natural justice and procedural justice used in various other jurisdictions.

Read more:
Due process - Wikipedia, the free encyclopedia

Interpretation of Due Process Clause in U.S. Constitution

The Fifth Amendment guarantee of due process is applicable only to actions of the federal government. The Fourteenth Amendment contains virtually the same phrase, but expressly applied to the states. The Supreme Court has interpreted the two clauses identically, as Justice Felix Frankfurter once explained in a concurring opinion: “To suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.”

The due process clause applies to "legal persons" (that is, corporate personhood) as well as to individuals. Many state constitutions also have their own guarantees of due process (or the equivalent) that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to certain individuals than under federal law.

Due process under the U.S. Constitution not only restrains the executive and judicial branches, but additionally restrains the legislative branch. For example, as long ago as 1855, the Supreme Court explained that, in order to ascertain whether a process is due process, the first step is to “examine the constitution itself, to see whether this process be in conflict with any of its provisions....” In case a person is deprived of liberty by a process that conflicts with some provision of the Constitution, then the Due Process Clause normally prescribes the remedy: restoration of that person's liberty. The Supreme Court held in 1967 that “we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights.”

As a limitation on Congress, the Due Process Clause has been interpreted by the Supreme Court not only as a remedial requirement when other constitutional rights have been violated, but furthermore as having additional "procedural" and "substantive" components, meaning that the Clause purportedly imposes unenumerated restrictions on legal procedures — the ways in which laws may operate — and also on legal substance — what laws may attempt to do or prohibit. This theory of unenumerated rights is controversial. For example, Justice Clarence Thomas stated as follows, in a 2004 dissent:

As an initial matter, it is possible that the Due Process Clause requires only “that our Government must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provisions.” In re Winship, 397 U. S. 358, 382(1970) (Black, J., dissenting).

Despite the objections of people like Justice Hugo Black in Winship, the courts have attempted to extract unwritten requirements from the Due Process Clause, regarding both procedure as well as substance. 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 even more controversial than the procedural component, because it gives the Court considerable power to strike down state and federal statutes that criminalize various activities.

By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme Court to mean that “it was not left to the legislative power to enact any process which might be devised. The [due process] 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.” But determining what those restraints are has been a subject of considerable disagreement.

Read more:
Interpretation of Due Process Clause in U.S. Constitution - Wikipedia, the free encyclopedia



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