What Is Due Process?

Understanding the roots of due process

The roots of due process go all the way back to the Magna Carta. The 13th-century charter limited the power of the king by establishing the law as the source of power. A key concept in that document was that the king couldn't seize or imprison a free person, strip them of their rights or possessions, or deny their free standing in society without a lawful judgment by their equals or the law.

The U.S. Constitution has made this concept the rule of the land. For example, the Fifth Amendment states: "No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Meanwhile, the Fourteenth Amendment says: "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."

What are the types of due process?

There are two different types of due process:

• Procedural due process: Procedural due process requires three things anytime the federal government takes an action that would deny a citizen life, liberty, or property. It must give that person or entity notice; the opportunity to have their case heard; and an ultimate decision from a neutral party.
• Substantive due process: Substantive due process allows the courts to protect certain rights from governmental interference. As a result, legislatures aim to ensure that they write laws that won't violate due process so that the court system won't overturn them.

In a nutshell, procedural due process refers to how the government carries out a law, while substantive due process determines if a law violates constitutional protections.

Why is due process important?

Due process is essential because it safeguards a free society from one controlled by the government. The government can't, on a whim, throw a citizen in jail, take away their property, or execute them. It must first give them a fair chance to defend themselves.

Fairness is an important aspect of due process. For example, due process protects citizens in cases of eminent domain. The government can't simply take a person's land away without fairly compensating them for their property.

An example of due process

Eminent domain allows the government to seize a citizen's private property for greater public use, such as using their land to build a new highway. However, due process protects that citizen's property rights. It requires that the government pay them the fair market value for their property.

There are many famous eminent domain cases involving due process. One prominent example was when Congress used eminent domain in 1896 to take the Gettysburg Battlefield away from the Gettysburg Railroad Company to preserve the site. The railroad used due process and sued the government. Their case made its way to the Supreme Court. The high court, however, ruled in favor of Congress, stating that the actions were legal as long as they paid just compensation for the seized land. In this case, due process protected the railroad from losing the fair value of their property, even if they ultimately lost the property.