Due Process: What is it?

Due Process sets forth the requirement that the law of the land serves to confine the government by preventing the violation of the rights of an individual by the state.  In a criminal court case, Due Process guarantees the defendant that their Constitutional Rights are not trampled upon.

Due process dates back to Medieval England.  For generations, English kings had allowed barons to hold lands belonging to the monarchy under a pledge of loyalty, obedience, to pay taxes and the promise to supply knights in times of war and upheaval.    Due to King John’s persistent bad luck with military campaigns, time and again he taxed the barons leading them to revolt against him.  In 1215 John and the feudal barons entered into an agreement known as the Magna Carta.  From this document due process was first established.

“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.”

~Section (39), Magna Carta of 1215

The first mention of Due Process for citizens of the United Sates was set forth in the original Bill of Rights by the Fifth Amendment, but only in the context of federal actions.

“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.”

~ Fifth Amendment

In practice only whites were afforded Due Process.  It had never been applied to slaves.  In fact in affirming Dred Scott v. Sandford, 60 U.S. 393 (1857) the Supreme Court made excluding slaves the law of the land.  It was not until July 9, 1968 as a part of a reconstruction package of Amendments was Due Process extended to cover actions by the several states and as a right granted to all citizens of the United States, regardless of heritage.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

~Section 1 of the Fourteenth 14th Amendment

Though the Fourteenth Amendment extended the right of Due Process to all citizens regardless of race, in both Federal and the States,  The Court did not formally recognize this right until 1949 when it decided Wolf v. Colorado, 338 U.S. 25.

In the next article we look explore the right to counsel and it’s history.