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A study of how due process of law is achieved.

Due Process; From Substantive to Procedural

The concept of due process had been around for a great while before the advent of the Constitution of the United States or the Bill of Rights had come into being. Originating in England in 1215, and initiated by King John as the Magna Charta, or Great Charter, the concept was basically a rudimentary form of checks and balances designed to make judgments fair and consistent. Instead of absolutely prohibiting the king from depriving individuals of their rights, the Magna Charta's "law of the land" clause guaranteed that when the king acted against an individual, it would only be in accordance with accepted principles: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." this language promised that the king would act according the rule of law and not his own mere will, which would promote arbitrariness. (Sandefur)  In America, under the United States Constitution, the framers worked to further separate the ability for arbitrariness in the restriction of certain inalienable rights, specifically, the right to life, liberty, and property. They did this by creating a system that is ruled by laws rather than people. Due Process is introduced into the Constitution in two places, first, in the Fifth Amendment where Due Process of Law is guaranteed to all inhabitants of the United States of America who are non-combatants, and secondly in the Fourteenth Amendment where Due Process is obliged onto the individual states as well as the federal government.

It actually requires that certain basic principles of lawfulness, principles that distinguish between

lawful and arbitrary rule and which are found articulated in the Bill of Rights, are required of states under the Due Process Clause. (Sandefur)

In this paper I propose to introduce and explore several notions concerning the implementation of Due Process, and possibly even predict that Due Process, as it was originally intended for implementation, is outdated and therefore impractical in a post 9/11 society.  I plan to argue several points: i. Due Process is multi-faceted and in fact the very concept of Due Process requires a duality of nature, that of Substantive and Procedural Due Process.  ii. In order to have Due Process of Law, the laws in question must be both valid and sustainable. iii. Due Process of Law can only be implemented in an environment of checks and balances, with no single individual or entity being solely responsible for the implementation of Due Process.  iv. Due Process is a notion that is ever changing and must be flexible in its ability to correspond with the changing environment that it finds itself being practiced in.


         When a person considers the prospect of Substantive Due Process, she is often regaled with the poetry of the language which the Founding Fathers drafted this Constitution and Bill of Rights. She wants freedom of speech, and thus she has freedom of speech as provided by the First Amendment. She wants the right to keep and bear arms and thus she has it as the Second Amendment proclaims. And these freedoms go on and on, until she finally decides that she wants the process of law which is due her as provided by the Due Process Clause, and there she reaches a quandary. Because unlike the right to freedom of speech, where she need only find the nearest soapbox to voice her opinion and thereby flex her inalienable right, or the Second Amendment right to keep and bear arms whereby she need only strap her Colt 1911A1 to her hip and go armed in public, the ability to exercise her right to Due Process is dependent on other factors.

         First of all, Due Process only comes into play when one is confronted with the loss of either life, liberty, or property; and that life, liberty, or property is being taken by a government entity in accordance with law. Furthermore, that law must be valid and serve a purpose in conjunction with “legitimate authority.”

“Law in the sense of which courts speak of it today does not exist without some definite authority behind it"—then its purported enforcement is coercion without law. A law is something that has legal effect, and it has that effect because it was created or adopted by an entity with the power to create rights or impose obligations. “Law" that does not have the backing of some sovereign is not law, at least not domestically. Thus, the substantive aspect of the Due Process Clause protects us from government coercion that is not backed by a valid law. Government power is delegated by the people; it is limited; and if those limits are exceeded, the purported law is simply void. It is no law at all, and no attempt to enforce it can be dignified with the name "due process of law." (Roosevelt)

         In Giacco v. Pennsylvania, the courts determined that the Due Process Clause protected the people from deprivation of life, liberty, or property, only by the exercise of lawful power. Giacco v. Pennsylvania, 382 U.S. 399, 403 (1966) This would prevent, for instance, a person from bringing suit against the government for having their house robbed by a person who acted in his own accord and who was not under the color of law. Otherwise the argument could be made I think that the government is responsible for the protection of life, liberty, and property beyond the scope of its own action and proceedings.

In the case of Allgeyer v. Louisiana,  Louisiana lacked the power to regulate a contract formed and performed outside the state, and a statute purporting to do so was no law but, in Chase's words, a mere "act." (Roosevelt)

In this instance the state of Louisiana tried to enforce a tax on a merchant simply because he had purchased insurance out of state and the court ruled that the law was no law at all.

Timothy Sandefur gives an excellent analogy of the invalid law theory when he describes a scene from Shirley Jackson’s The Lottery. In this narrative, a community has a law that requires a lottery be held every year, consisting of all members of the community; the winner gets the honor of being stoned to death by the other members of the community as a sacrifice to some deity that had been ruling over it for centuries. For this community this was a normative notion, wholly accepted, however, the rest of society is not in agreement thus the plot of the story involved the inception of outsiders who saw the errant behavior for what it was. Sandefur argues that this is an example of invalid law, law accepted and promoted by the powers that be, but one that not only serves no purpose, but also violates other inalienable rights, and is therefore nullified.

Consistently the Supreme Court has used the Due Process Clause to protect individuals against government acts that were invalid because they exceeded government authority. (Roosevelt)

This notion appears frequently in The Federalist Papers as the Founding Fathers rationalized a government plan that depended on rule of law for public good as opposed to monarchy.

For a democracy to be a lawful order, and not mere mob-rule, the govemment would have to keep constantly in mind this difference between rule for the self-interest of the legislative majority and rule for the true public interest. That distinction would operate in the government's actions through the lawfulness requirement embodied in the Due Process Clause. (Madison)

Or consider Justice Chase's opinion in CALDER v. BULL, 3 U.S. 386 (1798) , where Chase noted that:

“The purposes for which men enter into society will determine

the nature and terms of the social compact; and as they are the

foundation of the legislative power, they will decide what are the

proper objects of it: The nature, and ends of legislative power will

limit the exercise of it.... There are acts which the Federal, or

State, Legislature cannot do, without exceeding their authority....

An ACT of the Legislature (for I cannot call it a law) contrary to

the great first principles of the social compact, cannot be

considered a rightful exercise of legislative authority.”

So substantive Due Process, it seems, is the product. It is the right to remain silent, to be secure in your premises, to face your accuser, to have legal counsel, to a trial by a jury of your peers... etc.  So the question remains in considering our person who wants to get herself some Due Process, where does she go to get some of that?

         Substantive Due Process relies heavily on notion and reasoning for its existence. Where it comes into being is through Procedural Due Process. Think of Procedural Due Process as the vehicle by which Substantive Due Process is delivered. Substantively you have the right to contradict your accuser; a writ of Habeas Corpus will procedurally make it so. 

“The writ of habeas corpus and the right to due process have long been linked together, but their relationship has never been more unsettled or important. Following the September 11, 2001 attacks, the United States detained hundreds of suspected terrorists who later brought legal challenges using the writ. Scholars assumed due process would govern the area. Yet in Boumediene v. Bush, the Court did not take the due process path and instead held that the Suspension Clause extended habeas corpus process to noncitizen detainees at Guantanamo Bay. The Court held that the Suspension Clause demands a traditional habeas process, simply asking whether the detention is legally and factually authorized. Put simply, the Suspension Clause can ensure that habeas corpus begins where due process ends. The writ of habeas corpus and the right to due process have long been linked together. The Supreme Court has called "vindication of due process" the "historic office" of habeas corpus.  Following hazy origins at common law, habeas corpus and due process together "formed a powerful current in the stream of constitutionalism." Over time, judges connected notions of due process to the development of the writ of habeas corpus,  the "great writ of liberty" that allows a judge to inquire into the legality of a prisoner's detention.”  (Garrett)

Consider the words of Justice William J. Brennan when he states: "Standards of due process have evolved over the centuries. But the nature and purpose of habeas corpus have remained remarkably constant."  This statement seems to support the notion that Habeas Corpus picks up where Due Process drops off as regarded by Garrett, however, I would still make the claim that the writ of Habeas Corpus is simply one of  the many  working tools of Due Process and that one serves the other with two very distinct and separate functions. I agree more with Justice Antonin G. Scalia when he states concerning Habeas Corpus: "The role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal."  In other words, he is saying that Habeas Corpus is the means to determine whether someone is being held legally, not the means to make their detention legal. It is a function and not a law. You have the right to remain silent, Miranda makes that right available to you. You have the right to be secure in your residence, free from arbitrary search and seizure, the requirement of a warrant makes that happen.  "Police power" is often used to indicate a general executive power—a power that has no limits and whose exercise may be defeated only by the assertion of a trump-like right; however, that is not how the founders had framed the Constitution and the role of the government. To the common man, a police officer has no more authority than does any other man. The only time a police power has authority over a citizen is when that citizen is in violation of a law. And there are a series of checks and balances that protect the citizen from the arbitrariness of the individual police power. Indeed, there are also separate, specific constitutional provisions that protect such standard due process rights as the right to a trial by jury, or to face an accuser, or freedom from bills of attainder. The redundancy argument, the argument that there are too many methods of checks and balance in the criminal justice system, would require one to conclude that the Due Process Clause does not itself protect these basic elements of due process of law.  Due process of law should be seen as "a rational continuum which includes a freedom from all substantial subjective bothers and purposeless restraints, and which also recognizes that certain Interests require particularly careful scrutiny of the state and needs asserted to justify their summary”. (Sandefur)

         Given the argument outlined above, we can proceed to conclude the relatively simple contrast between Substantive Due Process compared to Procedural Due Process. In summary the two types complement each other, and in fact depend on each other, one for substance; the other for conveyance.


         As touched on above, in order for Due Process to be administered in accordance with the Founding Fathers design, laws must be valid and sustainable. One great questionable act of the historical government that is a fine example of deprivation of Due Process was the historical concept of Manifest Destiny. However, it is a legitimate need of the government to obtain some privately owned property for the public good, the first transcontinental railroad for instance.  So the question then is the government’s seizure of that property a violation of Due Process of law. As Madison pointed out, the rule of government must be a focus on the public good as opposed to personal good. The literature supports the idea that Due Process of Law is truly the only method by which the Federal Government can take the property of another, and Due Process in this instance is indeed obtained in the form of just compensation being offered in lieu of the seized property.

The legislature may prescribe a form of procedure to be observed in the taking of private property for public use, but it is not due process of law if provision be not made for compensation. Notice to the owner to appear in some judicial tribunal and show cause why his property shall not be taken for public use without compensation would be a mockery of justice. Due process of law as applied to judicial proceedings instituted for the taking of private property for public use means, therefore, such process as recognizes the right of the

owner to be compensated if his property be wrested from him and transferred to the public. The mere form of the proceeding instituted against the owner, even if he be admitted to defend, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation. (Sandefur)

In short, a lawful act is one the ruler is authorized to adopt or enforce. One must therefore inquire into the lawmaker's authority and the limits on that authority, both procedural and substantive, to determine whether an act satisfies the due process of law guarantee. When a government act exceeds the government's authority—due to a procedural shortcoming, a substantive violation, a logical contradiction, or any other flaw— that act cannot qualify as law, and thus any attempt to enforce it constitutes arbitrary or lawless action.(Sandefur)

3. Checks and Balances

         Even as far back as the writing of the Magna Charta, it was evident to rulers and law makers alike that a system of checks and balances was in order to ensure that all citizens of a kingdom or society were treated fairly and consistently. This is obviously important in that no person is subject to the whimsy of another’s arbitrariness and one only has to hear of French noblemen warming their feet in the bowels of a peasant while out on a hunting trip once to understand the importance of freedom from arbitrary rule. arbitrary restrictions or confiscations imposed by the ruler for no genuine public purpose—were among the things the due process, or law of the land restrictions were intended to prevent. (Sandefur)

         Say in today’s society a citizen is observed performing some transgression, speeding for instance. And she is observed by an officer sent forth as part of the executive branch to be on the lookout for such transgressions. She is stopped, informed of her crime, and formally charged in writing, her crime written in full along with the time, date and specific law that was violated. She will go before a judge of the jurisdiction in which she had allegedly committed said crime and he will review the officer’s criminal charge and decide whether the officers written account of the incident adheres to the elements of the crime as provided by the written word of the law. If it does, the judge will ask the citizen whether in her opinion she is guilty of having committed the crime, including whether her mental state was such that she was culpable.

If, for instance, the culpable state for  this criminal charge were “recklessly” and the facts of the case were that she had a choking baby in the car and were heading to the hospital in an attempt to save the child’s life, a judge may see that reckless behavior in this instance would have been to drive below the speed limit and thereby further endanger the child’s life, she therefore would not be reckless in her mental state as it would stand to reason that any prudent person would choose to drive faster than normally allowed in order to save the life of a child. If she did not meet the mentally culpable state she would be found not guilty.

If she said that she were not guilty, then a trial would be set in which the police officer would be forced under threat of arrest to come before the judge and to tell the judge exactly why she was guilty. The judge may even ask her if there was any reason for the officer in question to harbor any hard feelings for her. If she answered yes then the judge would take that along with other factors into consideration in his decision on the case.

If she is unhappy with the decision of the judge of the court of venue than she is permitted to appeal to a higher authority, or to a jury of her peers. The point is that true Due Process inherently requires that there be more than one individual involved in the decision to take life, liberty, or property, and that a group of her peers be permitted to weigh the case as well in order to truly ascertain her guilt or innocence in a fair and consistent manner.

Let us now consider the fictional character Judge Dredd. The series, first designed as a comic book theme, takes place in the far future. The world is in chaos, the population of humanity has reached such astronomical proportions that the criminal justice system cannot keep up either executively or economically. So the notion is that basically every police officer is given the full power of the entire executive branch, and serves as a judge, jury, and executioner making field decisions that involve the taking of life, liberty, and property.  While this is a truly romantic notion to some degree it is completely without regard to the system of checks and balances that make Due Process a process at all. In the movie Judge Dredd (2012), we see that Judge Dredd is forced to confront five other judges who have been hired to kill him by the leader of the Mah-mah Clan. Though fictional, this is one prime example of the risk of having law without Due Process; that of corruption. In a very “Plunkett of Tammany Hall” scenario, absolute power and unquestionable authority gives rise to favoritism, unfairness, and violations of inalienable rights.

Normative positions are often environmental as well. Consider the example of Shirley Jackson’s The Lottery again. The decision to murder in that small town was a normative decision for that town, though the entire rest of the world sees the irrationality of it. Another example of normative decision making being detrimental can be seen in the often unconstitutional decisions being made in the deep south during the 50’s and 60’s. Desegregation was being resisted by Governor Wallace, and southern courts upheld illegal notions that they tried pass as laws, and which had to be disrupted by federal intervention.

The literature reflects that modern Procedural Due Process should become a national standard as opposed to a state by state structure that can be influenced by local politics and private interests.

Modern, skeptical, ethical theories often see normative positions as essentially subjective, emotional commitments. Starting from this premise, contemporary legal academics tend both to look for a way around what they consider unanswerable questions and to confine themselves to an allegedly more rational, procedure-oriented approach to law, hoping for a kind of objectivity in the rejection of anything normative. (Sandefur)

Doing so would ensure that yet another system of checks and balance were in place to keep the dissemination of Due Process equal throughout the country, and could prevent normative, geographic ideals and cultural standards from hindering the rights of the people to Due Process of Law. In Loving v.Virginia, for example, the state argued that a law that prevented blacks from marrying whites was in fact law because it actually treated both races evenhandedly because it deprived whites of the capacity to marry members of other races just as it deprived blacks of that right. (Sandefur) This type of “runaround” thinking could be prevented by national procedural methodologies.

It cannot be argued that the United States government through the Constitution does not strictly adhere to the Common Law system of government, but it is rather a hodgepodge of court decisions, various writs, suits of common law and justice opinions and these various other items used to interpret law and to determine Due Process. (Sandefur)

4. Due Process as a Working Tool

         The framers of the Constitution and the Bill of Rights could not possibly have looked into the future and have known the vast changes which would take place as technology advanced after the Industrial Revolution. Had they known the great challenges that would be faced by their predecessors, it may well be that they would have reconsidered some of the aspects of the Bill of Rights and the Constitution. The cost is becoming astronomical as courts and jail systems struggle to pay the fees of upholding such a complex and fair criminal justice system as ours. Some jurisdictions have initiated fees that many would argue are a subdivided deprivation of Due Process rights as the fees are, in and of themselves, put procedurally into place, but they are not considered on a case by case basis and are therefore not giving each affected individual the fair and consistent rights of Due Process.

Some jurisdictions have haphazardly created an interlocking system of fees that can combine to create insurmountable debt burdens. Florida has added more than 20 new fees since 1996. In 2009, the Council of State Governments Justice Center, a national nonprofit organization, partnered with the Texas Office of Court Administration to report on criminal justice debt collection practices. The report found that a “sprawling number of state and local fees and court costs that state law prescribes as a result of a criminal conviction amounts to a nearly incomprehensible package.” In 2009, North Carolina instituted late fees for failure to pay a fine, and added a surcharge for being placed on a payment plan. Jurisdictions in at least nine states charge people extra fees for entering into payment plans, which are purportedly designed to make payments easier. (Roopal, P & Philip, M 2011)

The problem arises though that even in the states that are incorporating court fees and other restitutions aren’t seeing the returns that they need in order to even break even, and the result is that taxpayer dollars are having to make up the difference.

The assumption that court user fees provide a valuable revenue source ignores the vast expenditures incurred in attempts to collect fees, mostly from people unable to pay. Policymakers must also consider direct costs of collection, such as the salary and time for the clerks, probation officers, attorneys, and judges who will be involved in fee collection processes.15 A 2009 Council of State Governments Justice Center and Texas Office of Court Administration report on criminal justice debt collection found that a “sprawling number of state and local fees and court costs that state law prescribes as a result of a criminal conviction amounts to a nearly incomprehensible package.” For example, a state that revokes or fails to grant supervised release to someone who has not paid their criminal justice-related debt will often spend more money incarcerating that person than it could expect to collect if a criminal justice debt were paid in full. There are inmates in Pennsylvania who are eligible for release but are kept in prison based on their inability to pay a $60 fee.16 The daily cost of confinement is nearly $100 per day.17 In 2009, Mecklenburg County, North Carolina arrested 564 people because they fell behind on debt; the County jailed 246 debtors who did not pay for an average of 4 days.18 The county collected $33,476 while the jail term itself cost $40,000 — a loss for the county of $6,524.19 (Roopal, P & Philip, M 2011)

         After the terror attacks of September 11th, 2001 national security became a real issue. Those attacks were a game changer for the concept of Due Process of the law because weapons of mass destruction, (WMD), were not a factor during the framing of the Constitution; it had not been written in a manner conducive to the prevention of acts of violence which could lead to several thousand deaths at a time.

         There are times when Due Process of Law as provided by the Constitution is not practical or sensible to a prudent person. I’m thinking of course of the threat of imminent harm. Though common sense dictates that one has a right to protect herself or others from serious physical harm or death, this right is not specifically addressed in the Constitution whereas the right to Due Process most certainly is. So the question must arise then that if a person acting under 42 USC (1983), the “Color of Law” code, who is bound by the United States Constitution to offer to every citizen the right to Due Process, who actually swears an oath to do so, if confronted with someone who is placing another in threat of imminent physical harm, should he not fail to act- according to the letter of the law- until after that person has committed the act of harming the other. Of course the answer is no, but how can we both uphold the letter of the law and ensure that Due Process of the Law is being offered to American citizens, while also ensuring that a crime of violence is being prevented when possible?

Though the threat of WMD was not present at the time of the framing of the Constitution, there are similar incidents that have occurred ever since firearms were invented, albeit on a much smaller scale. I refer of course to the peace officer involved shooting. Throughout American history, and particularly in the era of the settling of the western states, lawmen have been forced to draw guns and kill other men or die themselves. Since the prospect of not firing until he is sure that the other guys have intention to fire would result in a significant shortage of lawmen, it became necessary to offer the unfortunate outlaw who fell to the guns of police Due Process of the Law after the fact. In other words, a system was developed that has a nature of duality in that the shooting is reviewed for propriety. In Ohio at least, a policeman who has shot or killed another person in the line of duty is reviewed by the grand jury in her county to determine if the actions of the one who was shot or killed were ipso facto to the extent that the officer was justified in the use of deadly force to halt or stop the actions of that person.

Under Ohio law a police officer or other agent as described in 42 USC (1983) may use any level of force including deadly force to protect herself or another from death or serious physical harm, or to halt or prevent the escape of a convicted felon.


Sandefur, T. (2012). IN DEFENSE OF SUBSTANTIVE DUE PROCESS, OR THE PROMISE OF LAWFUL RULE. Harvard Journal Of Law & Public Policy, 35(1), 283-350.

FRANCIS BACON, Aphorism 1, in THE PHILOSOPHICAL WORKS OF FRANCIS BACON 613 (John M. Robertson ed., 1905).

THE FEDERALIST NO. 10, supra note 70, at 80 (James Madison).

Patel, R., & Philip, M. (2011). Criminal justice debt. New York: Brennen Center for Justice.

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