Due Process

Due Process Clause

Name
Class
Daye
Professor

Due Process

Due Process Clause

Due process is a fundamental right guaranteed all citizens. This fundamental right
guarantees that all citizens will be treated fairly and equally when answering to any charges by
the government and ensures the government can never take steps to deny the citizen life, liberty,
or property. The Due Process Clause originated from British common law but was not applied to
the state until 1868 with the Fourteenth Amendment. The Magna Carta was a document created
by the Lords of England during the rule of King James which established the rights that should
be afforded to citizens in a free society. While the Magna Carta was not law for long in England
it was later used as the example by American forefathers while creating the constitution.
Due process is simply the right to be free from oppression by the government. As it emerged
from the English tradition, the essence of due process of law lay in the right of individuals to
be notified of the charges against them, as well as their right to a fair hearing (Carey, 2011). The
citizen is oppressed when the government denies them the opportunity to prove their innocence
in a crime or if the government seizes property that belongs to the citizen without due course.
When the constitution was established it was focused on outlining the rights of the state. The Bill
of Rights was created after the constitution and established the specific rights guaranteed the
citizen.
These individual rights when established only applied to the federal government and did not
apply to the state. Due process, for the most part, was present in the state but only applied to the
citizens right to a fair hearing and right to notification about charges. The due process clauses in
the state were understood to relate to process, not to matters of substance (Carey, 2011). At the
end of the 19th Century this view began to change. The courts began to use the due process

Due Process

clause to review all aspect in state legislature from the regulation of industries, utilities, and
businesses.
The Supreme Court used the new definition of due process to measure the fairness of or
reasonableness of the regulations put into place by the state. The goal was to determine if the law
denied the citizen liberty. It was not until the first half of the 20th Century that the due process
clause and provision of the Bill of Rights were incorporated to the state. Prior to the 20th
Century the Supreme Court was hesitant to apply these rights to the state. The incorporation of
these rights has led to controversy.
Some complain the Supreme Court is taking liberties with the Constitution by establishing
liberties in areas where these liberties were never guaranteed (Szabo, 2007). For example the
separation of church and state is not guaranteed by the constitution but has been established
through the liberty rights paired with the due process clause. Critics find liberty was contained
to the basic rights afforded in the Bill of Rights. The Fourteenth Amendment is a separate right
that would be contained in the list of individual rights if thats what the forefather had intended.
The new version of the Due Process Clause allows the Supreme Court more liberal rights in
determining if laws created by the legislation are just resulting in expanded power for the judicial
branch and greater protections for the citizen in the state. The new version of the Due Process
Clause expanded substantive due process to include rights not specifically defined in the
constitution. By the 1960s all types of rights never addressed by the court came under judicial
review. This included rights not expressly outlined but implied, such as the right to privacy and
freedom of association.

Due Process

Through the new definition of the Due Process Clause, the judicial branch had expanded its
powers creating outrage from some who thought the three branches were no longer equal in their
power. The court began deciding important social issues from a womens right to have an
abortion to the due process rights that should be afforded the criminal defendant. The court
began deciding which police actions did or did not violate the citizens due process rights
(Benton, 2012). The rights of the defendant started to become more important than the right of
the state or even the victim. For example in County of Sacramento v. Lewis the court determined
high speed chases do not violate the due process rights of the citizen.
Early interpretations of the due process clause afforded the state greater authority than the
newer versions. Once the Due Process Clause definition was changed the Supreme Court began
to become way more involved in the decisions made in the state than ever in the past. The newer
version is focused on private interests while the due process of the past was focused on
government power. In the past the Supreme Court hesitated to intrude into the powers of the state
but after the 1960s the application of this clause became far more liberal and far more protective
over the rights of the citizen.
Due process when it originated in the constitution and Bill of Rights was designed to ensure
that no government could ever become oppressive over the people (Williams, 2012). Americas
forefathers came from a country where the Aristocracy changed the law on a whim including
punishing or killing citizens for even the most minor of crimes. When America was established
the goal was to ensure this type of behavior would never happen again. The denial of due process
can lead to the government becoming oppressive and the citizen being denied their rights.

Due Process

While the forefathers may not have originally established the rights in the 14th Amendment
the understood society would change and so would the due process rights of the citizen.
Overtime the need to expand due process has become obvious by the actions of the government
or the state. For example when police ignore the rights of the citizen they are denying them due
process. Expanding the Due Process Clause had expanded the rights of the citizen which is good
but it has also increased the power of the judiciary which has resulted in controversy.

Due Process

References
Benton, M. & Calhoun, C. (2012).Has the Due Process Clause Gotten Its Groove Back?
Retrieved October 8, 2014 from http://www.alston.com/Files/Publication/e6b7f5ee-27d0
Carey, G. (2011). Due Process. Retrieved October 8, 2014 from
http://www.firstprinciplesjournal.com/articles.aspx?article=867
Szabo, N. (2007). A very brief history of due process. Retrieved October 8, 2014 from
http://unenumerated.blogspot.com/2007/06/very-brief-history-of-due-process.html
Williams, R. (2012). Substantive Due Process in Historical Context. Retrieved October 8, 2014
from http://www.cato-unbound.org/2012/02/10/ryan-williams/substantive-due-process-hist