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Definition: due process from Merriam-Webster's Collegiate(R) Dictionary

(15c) 1 : a course of formal proceedings (as legal proceedings) carried out regularly and in accordance with established rules and principles —called also procedural due process 2 : a judicial requirement that enacted laws may not contain provisions that result in the unfair, arbitrary, or unreasonable treatment of an individual —called also substantive due process

Summary Article: Due Process
From Encyclopedia of Diversity and Social Justice

Originating from the Anglo-Saxon legal tradition, the term due process initially emerged to ensure procedural rights. However, the meaning of the concept today also comprises substantive rights that pave the way for supervision of both state and federal government actions.

The word due means “fair, or someone has a right,” as indicated in the statement, “Give someone his due.” As the name implies, due process is determined in terms of the process rather than the outcome. The main and feasible goal is to ensure a fair process.

As a rule in English Common Law, due process requires that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves, which predates written constitutions. The phrase due process appears in the U.S. Constitution in the Fifth and Fourteenth Amendments, in which the expression is modified by the term of law. The phrase due process of law refers to the constitutional guarantees that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Furthermore, a law shall not be unreasonable, arbitrary, or capricious.

Legal scholars and judges have used the phrases due process of law and by the law of the land as equivalent words. The phrase by the law of the land was first established in 1215 in the Magna Carta: “No freemen shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”

This was rendered into statute in 1354: “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he brought to answer by due process of law.” This was reaffirmed in 1628 in the Petition of Right: “no freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.”

Enacted in 1791, the due process clause of the Fifth Amendment affirms that no person shall “be deprived of life, liberty, or property, without due process of law.” This emendation restrains the powers of the federal government and applies only to actions by it. The Due Process Clause of the Fourteenth Amendment, passed in 1868, declares, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” This clause restricts the powers of the states rather than those of the federal government.

As legal tradition applied, constitutional due process can be categorized as substantive due process and procedural due process. These categories stem from an analysis that is made between two types of law. While substantive law defines and regulates rights, procedural law enforces those rights or seeks redress for their violation. Therefore, the issues, such as privacy and freedom of speech, are dealt with under substantive due process, whereas the issues, such as the right to an attorney and right to be present during testimony, are dealt with under the procedural due process.

The main tenets of procedural due process are the notion that government action that deprives the individual of life, liberty, or property must be congenial with the rule of law. Furthermore, government action must be nonarbitrary; hence, individuals must be put on notice of the reasons for an impending deprivation of life, liberty, or property, and they must be given a fair opportunity to respond to the official written accusations made. In addition to constitutional mandates, the requirements of due process are also observed in civil court procedures (e.g., schools, social security, public employment, and civil suits). Thus, for instance, the court held that the federal government must hold hearings before terminating welfare (Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 [1970]).

Substantive due process allows the procedures that are established to be challenged based on their effects (this doctrine in the United States was first applied in Griswold v. Connecticut, 1965). Procedures will generally fail the substantive due process test in the courts if they are arbitrary, violate constitutional rights, or are unrelated to a legitimate state interest. The substantive due process doctrine has been used by the U.S. Supreme Court to support several rights not specifically guaranteed in the Constitution (e.g., rights to privacy and freedom of choice regarding sexual practices and health).

In special education, the term due process refers to the procedures and policies that were established to ensure equal educational opportunities for all children, including children with disabilities. Parents can use these procedures to disagree with the decisions of school district officials concerning special education. Due process in special education requires school officials to inform parents of their rights by written notice, which describes the options of a prehearing conference, a formal hearing, and appeals.

Additional Reading
  • Hyman, A. T. (2005). The little word “due.” Akron Law Review, 38(1), 1-51.
  • Karnes, F. A.; Troxclair, D. A.; Marquardt, R. G. (1998). Due process in gifted education. Roeper Review, 20(4), 297-301.
  • Richardson, A. J. (2008). Due process and standard-setting: An analysis of due process in three Canadian accounting and auditing standard-setting bodies. Journal of Business Ethics, 81(3), 679-96.
  • Sandefur, T. (2012). In defense of substantive due process, or the promise of lawful rule. Harvard Journal of Law and Public Policy, 35(1), 284-326.
  • Zeki Pamuk
    Copyright © 2014 by Rowman & Littlefield Publishers

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