Due process

Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land protecting individual persons from the state. When a government harms a person, without following the exact course of the law, then that is a due process violation which offends the rule of law.

Quotes

• It is assented and accorded, for the good Governance of the Commons, that no Man be put to answer without Presentment before Justices, or Matter of Record, or by due Process and Writ original, according to the old Law of the Land: And if any Thing from henceforth be done to the contrary, it shall be void in the Law, and holden for Error
  • Observance of due Process of Law (1368).

• That no Man, of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due-process of Law.
  • 28 Edward III, Chapter 3, reported in Henry Booth Warrington, The Works of the Right Honourable Henry, Late Lord Delamer, and Earl of Warrington (1694), p. 102.

• Nor shall any person be subject for the same offense 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.
  • Fifth Amendment to the United States Constitution (1791).

• No State shall … 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.
  • Fourteenth Amendment to the United States Constitution, sec. 1 (1868).

• Audi Alteram Partem.
  • Translation: "No man should be condemned unheard".
  • Ancient legal maxim, reported in Herbert Broom, A Selection of Legal Maxims (1900), p. 89.

• Those who slew my father I drove into exile, punishing their deed by due process of law, and afterwards when they waged war upon the republic I twice defeated them in battle.
  • Augustus, Res Gestae Divi Augusti as translated in Loeb Library edition (1924).

• Bad men, like good men, are entitled to be tried and sentenced in accordance with law, and when it is shown to us that a person is serving an illegal sentence our obligation is to direct that proper steps be taken to correct the wrong done, without regard to the character of a particular defendant or to the possible effect on others who might also want to challenge the legality of their sentences as they have the right to do 'at any time' under Rule 35. If it has any relevance at all, the fact that there may be other prisoners in this country's jails serving illegal sentences would seem to me to make it all the more imperative that we grant appropriate relief in this case rather than search for some obviously dubious excuse to deny this petitioner's claim.
  • Hugo Black, dissenting, Green v. United States, 365 U.S. 301, 309-310 (1961).

• For me, the only correct meaning of that phrase is that our Government must proceed according to the 'law of the land'—that is, according to written constitutional and statutory provisions as interpreted by court decisions.
  • Hugo Black, dissenting, In Re Winship, 397 U.S. 358 (1970).

• Due process is a growth too sturdy to succumb to the infection of the least ingredient of error.
  • Benjamin N. Cardozo, Roberts v. New York, 295 U.S. 264, 278 (1935).

• The first eight Amendments to the Constitution have been made applicable to the States only in part. My view has been that, when the Fourteenth Amendment was adopted, its Due Process Clause incorporated all of those Amendments. See Adamson v. California, 332 U. S. 46, 332 U. S. 68 (dissenting opinion). Although the history of the Fourteenth Amendment may not be conclusive, the words "due process" acquired specific meaning from Anglo-American experience. [Footnote 2/7] As MR. JUSTICE BRENNAN recently stated, "The Bill of Rights is the primary source of expressed information as to what is meant by constitutional liberty. The safeguards enshrined in it are deeply etched in the foundations of America's freedoms." The Bill of Rights and the States (1961), 36 N.Y.U.L.Rev. 761, 776. When the Framers wrote the Bill of Rights, they enshrined in the form of constitutional guarantees those rights -- in part substantive, in part procedural -- which experience indicated were indispensable to a free society. Some would disagree as to their importance; the debate concerning them did indeed start before their adoption and has continued to this day. Yet the constitutional conception of "due process" must, in my view, include them all until and unless there are amendments that remove them.
  • Justice William O. Douglas, Poe v. Ullman, 319 U.S. 105 (1943), at 515-516, dissenting.

• In 1942, there were 110,000 Japanese American citizens in good standing, law-abiding people who were thrown into internment camps simply because their parents were born in the wrong country. That's all they did wrong. They had no right to a lawyer, no right to a fair trial, no right to a jury of their peers no right to due process of any kind. The only right they had: "Right this way" into the internment camps! Just when these American citizens needed their rights the most, their government took them away! And rights aren't rights if someone can take them away. They're privileges. That's all we've ever had in this country, is a bill of temporary privileges. And if you read the news even badly, you know that every year the list gets shorter and shorter.
  • George Carlin, It's Bad for Ya (2008), "You Have No Rights".

• Ours will neither be a perfect world, nor a world without disagreement and occasional violence. But it will be a world where the overwhelming majority of national leaders will consistently abide by the rule of world law, and those who won't will be dealt with effectively and with due process by the structures of that same world law.
  • Walter Cronkite, UN Address (1999).

• The 14th Amendment, in declaring that no State "Shall 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," undoubtedly intended, not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoliation of property but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses.
  • Stephen Johnson Field, Barbier v. Connolly, 113 U.S. 27, 35 (1885).

• A license cannot be revoked because a man is redheaded or because he was divorced, except for a calling, if such there be, for which redheadedness or an unbroken marriage may have some rational bearing. If a State licensing agency lays bare its arbitrary action, or if the State law explicitly allows it to act arbitrarily, that is precisely the kind of State action which the Due Process Clause forbids.
  • Felix Frankfurter, Barsky v. Board of Regents, 347 U.S. 442, 470 (1954).

• The function of the lawyer is to preserve a sceptical relativism in a society hell-bent for absolutes. The worse the society, the more law there will be. In Hell there will be nothing but law and due process will be meticulously observed.
  • Grant Gilmore, The Ages of American Law (1977), p. 110-111; reported in George W. Liebmann, The Common Law Tradition: A Collective Portrait of Five Legal Scholars (2006), p. 177.

• It is fundamental that the great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due process. The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action. "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." Ex parte Milligan, 4 Wall. 2, 71 U. S. 120-121. The rights guaranteed by the Fifth and Sixth Amendments are "preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service." Id. at 71 U. S. 123. "[I]f society is disturbed by civil commotion -- if the passions of men are aroused and the restraints of law weakened, if not disregarded -- these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution." Id. at 71 U. S. 124.
  • Arthur Joseph Goldberg, Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), at 164-165.

• Other societies have degraded terrorists by subjecting them to lawless and unaccountable power. In the new world that is taking shape, terrorists, although they themselves degrade human rights by practising terrorism, will be afforded the full dignity of due legal process, even while being tortured.
  • John N. Gray, "A Modest Proposal," New Statesman (2003-02-17). This is a spoof article, subtitled "A Modest Proposal For Preventing Torturers in Liberal Democracies From Being Abused, and For Recognising Their Benefit to The Public. By John Gray (with apologies to Jonathan Swift)".

• Without this guarantee that one may not be deprived of his rights, neither liberty nor property, without due process of law, the State's monopoly over techniques for binding conflict resolution could hardly be said to be acceptable under our scheme of things. Only by providing that the social enforcement mechanism must function strictly within these bounds can we hope to maintain an ordered society that is also just."
  • John Marshall Harlan II, Boddie v. Connecticut, 401 U.S. 371, 374-75 (1971).

• Whatever disagreement there may be as to the scope of the phrase "due process of law" there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard.
  • Oliver Wendell Holmes, Jr., Frank v. Magnum, 237 U.S. 309, 347 (1915).

• But when notice is a person's due, process which is a mere gesture is not 'due process.'
  • Robert H. Jackson, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).

• Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires. Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which compromise substantive law.
  
  If it be conceded that in some way [the agency could take the action it did], does it matter what the procedure is? Only the untaught layman or the charlatan lawyer can answer that procedure matters not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures, than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.
  • Robert H. Jackson, Shaughnessy v. United States ex rel Mezei, 345 U.S. 206, 224–25 (1953)

• One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system. Many argue that a just society grants a right to engage in homosexual conduct. If that view is accepted, the Bowers decision in effect says the State of Georgia has the right to make a wrong decision--wrong in the sense that it violates some people's views of rights in a just society. We can extend that slightly to say that Georgia's right to be wrong in matters not specifically controlled by the Constitution is a necessary component of its own political processes. Its citizens have the political liberty to direct the governmental process to make decisions that might be wrong in the ideal sense, subject to correction in the ordinary political process.
  • Anthony Kennedy, Unenumerated Rights and the Dictates of Judicial Restraint. Address to the Canadian Institute for Advanced Legal Studies, Stanford University. Palo Alto, California. (1986-07-24 to 1986-08-01). (Also quoted at p. 443 of Kennedy's 1987 confirmation transcript).

• This is really a pretty good system you have here. What do you call it? "Due process". We're very proud of it.
  • Alex Kozinski, United States v. Juan Ramirez-Lopez, No. 01-50164 (9th Cir. January 10, 2003).

• We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men — not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.
  • Edward R. Murrow, See It Now (1954).

• Of course, working within your "system" is never going to get the peasants freedom or justice, but even giving them the illusion of "due process" and some form of appeal will keep most of them forever banging their heads against a bureaucratic wall instead of actually resisting you.
  • Larken Rose (2 December 2005), How to Be a Successful Tyrant: The Megalomaniac Manifesto, ISBN 978-0977783410 

• [The Texas anti-sodomy statute] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to 'liberty' under the Due Process Clause, though today's opinion repeatedly makes that claim. . . . The Fourteenth Amendment expressly allows States to deprive their citizens of 'liberty,' so long as 'due process of law' is provided. . . ."
  • Antonin Scalia, Lawrence v. Texas (dissenting).

• When asked about my opinion regarding blasphemy, I could not tell a lie and confirmed that — like both the Torah and the Gospel — the Qur’an considers it, without repentance, as a capital offense. The Bible is full of similar harsh laws if you're looking for them. However, the application of such Biblical and Qur'anic injunctions is not to be outside of due process of law, in a place or land where such law is accepted and applied by the society as a whole.
  • Cat Stevens, reported in "Chinese Whiskers," FAQ #18: "Did Cat Stevens Say, ‘Kill Rushdie!’?," Mountain of Light (undated).

• Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. . . . That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.
  • Potter Stewart, concurring, Roe v. Wade, 410 U.S. 113, 169-170 (1973).

• The due process of law as we use it I believe, rests squarely on the liberal idea of conflict and resolution.
  • June Tapp, reported in Gordon Bermant, "The Notion of Conspiracy Is Not Tasty to Americans: : Interview of June Tapp by Gordon Bermant", Psychology Today (May 1975), p. 65.