Constitutional Topic: Due Process

The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
pages. This Topic Page concerns Due Process. Due Process is mentioned in
two places in the Constitution; in the 5th
Amendment and in the 14th Amendment.

Due process is a difficult thing to define, and the Supreme Court has not
been much help over the years. Here’s what we can say about due process:

In the Magna Carta, due process is referred to as
“law of the land” and “legal judgment of peers.” Some state constitutions
continue to use these phrases.

The reference in the 5th Amendment applies only to the federal government
and its courts and agencies. The reference in the 14th Amendment extends
protection of due process to all state governments, agencies, and courts.

Due process, in the context of the United States, refers to how and why laws
are enforced. It applies to all persons, citizen or alien, as well as to
corporations.

In that, the “how” is procedural due process. Is a law too vague? Is
it applied fairly to all? Does a law presume guilt? A vagrancy law might be
declared too vague if the definition of a vagrant is not detailed enough. A law
that makes wife beating illegal but permits husband beating might be declared
to be an unfair application. A law must be clear, fair, and have a presumption
of innocence to comply with procedural due process.

The “why” is substantive due process. Even if an unreasonable law is
passed and signed into law legally (procedural due process), substantive due
process can make the law unconstitutional. The Roe v Wade abortion
decision declared a Texas law in violation of due process and ruled that in the
first trimester, it is unreasonable for a state to interfere with a woman’s
right to an abortion; during the second trimester, it is reasonable for a state
to regulate abortion in the interest of the health of mothers; and in the
third, the state has a reasonable interest in protecting the fetus. Another
application has been to strike down legislation requiring certain non-dangerous
mentally ill persons be confined against their will.

Generally, due process guarantees the following (this list is not
exhaustive):

• Right to a fair and public trial conducted in a competent manner
• Right to be present at the trial
• Right to an impartial jury
• Right to be heard in one’s own defense
• Laws must be written so that a reasonable person can understand what is
  criminal behavior

• Taxes may only be taken for public purposes
• Property may be taken by the government only for public purposes
• Owners of taken property must be fairly compensated

These pages also examine the topic of Due Process: