International News Photos, Inc. Women textile workers being escorted by policemen following arrest for picketing the Jackson mill in Nashua, New Hampshire, September 7, 1934. New York World-Telegram and the Sun Newspaper Photograph Collection, Prints and Photographs Division, Library of Congress

Due process of law is a constitutional guarantee that prevents governments from impacting citizens in an abusive way.  In its modern form, due process includes both procedural standards that courts must uphold in order to protect peoples’ personal liberty and a range of liberty interests that statutes and regulations must not infringe. It traces its origins to Chapter 39 of King John’s Magna Carta, which provides that no freeman will be seized, dispossessed of his property, or harmed except “by the law of the land,” an expression that referred to customary practices of the court. The phrase “due process of law” first appeared as a substitute for Magna Carta’s “the law of the land” in a 1354 statute of King Edward III that restated Magna Carta’s guarantee of the liberty of the subject.

The Fifth and Fourteenth Amendments to the Constitution, which guarantee that no person shall “be deprived of life, liberty, or property, without due process of law,” incorporated the model of the rule of law that English and American lawyers associated most closely with Magna Carta for centuries. Under this model, strict adherence to regular procedure was the most important safeguard against tyranny. Over time, courts in the United States have ruled that due process also limits legislation and protects certain areas of individual liberty from regulation.

Due Process of Law

During the rule of King Edward III (reigned 1327–1377), Parliament enacted six statutes to clarify the meaning and scope of the liberties that Magna Carta guarantees. The statutes interpreted the expression “the law of the land,” which appears in Chapter 29, as the judicial procedures that protect a subject’s liberties. One of the laws, enacted in 1354, introduced the term “due process of law”—the first appearance of that phrase in Anglo-American law—to describe Magna Carta’s procedural guarantees. The Fifth Amendment to the U.S. Constitution evokes this language in its Due Process Clause.

Due Process Statute in Statuta Nova, 1 Ed. III to 21 Richard II, 1354. Bound manuscript on vellum, fifteenth century. Law Library, Library of Congress (011)

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“Dr. Bonham’s Case”

Dr. Thomas Bonham’s case came before Chief Justice Edward Coke of the British Court of Common Pleas in 1610. At issue was a law that gave the London College of Physicians the power to imprison anyone practicing medicine without a license. Coke argued in his decision that the law was void for being “against common right and reason.” American jurists in the colonial era cited this case in support of the principle that statutes that conflict with fundamental law are void. It is often held to be the antecedent of both the doctrine of substantive due process and judicial review.

Edward Coke (1552–1634). “Dr. Bonham’s Case” in Coke’s Reports, Part 8. London: Society of Stationers, 1611. Law Library, Library of Congress (074)

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John Armor Bingham

The Fourteenth Amendment to the Constitution was ratified on July 9, 1868, and granted citizenship to “all persons born or naturalized in the United States,” which included former slaves recently freed. In addition, it prohibited states from denying any person “life, liberty or property, without due process of law” or denying “any person within its jurisdiction the equal protection of the laws.” Serving on the Joint Committee on Reconstruction, Ohio Representative John Armor Bingham was the sponsor and principal framer of the Fourteenth Amendment.

John Armor Bingham (1815–1900). Photographic portrait of John Bingham, between 1860 and 1875. Reproduction. Prints and Photographs Division, Library of Congress (036)

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One Country, One Constitution, and One People

Congressional opponents to the Fourteenth Amendment argued that the amendment would undermine the legislative power of the states. John Armor Bingham believed that the proper interpretation of the amendment’s “privileges and immunities” clause included most of the rights enumerated in the first eight amendments of the Bill of Rights. The amendment would therefore require state governments to adhere to the same standards as the federal government in protecting the rights of their citizens. In his defense of the amendment before Congress, Bingham argued that it was the fulfillment of the Constitution’s promised enjoyment of life, liberty, and property.

John Armor Bingham. One Country, One Constitution, and One People [speech of Hon. John A. Bingham, of Ohio, in the House of Representatives]. Washington, D.C.: Congressional Globe Office, 1866. Rare Book and Special Collections Division, Library of Congress (037)

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The Slaughter-House Cases

The Slaughter-House Cases were a series of cases before the U.S. Supreme Court that considered the extent to which the Fourteenth Amendment placed limits on the states’ legislative powers. While the majority of the court interpreted the amendment narrowly, Justice Stephen J. Field’s dissenting opinion argued that the amendment protected individuals from state legislation that infringed upon their “privileges and immunities” under the federal Constitution. Field’s dissenting opinion is often seen as an important step toward the modern doctrine of substantive due process, a theory that the Court has developed to defend rights that are not mentioned in the Constitution.

Stephen J. Field. The Fourteenth Amendment to the Constitution Considered: The Right to Pursue Any Lawful Trade or Avocation, Without Other Restraint. . . . :Dissenting Opinions . . . of U.S. Supreme Court, in the New Orleans Slaughter-House Cases. [Washington, D.C.]: Chas. W. Gordon, 1873. Daniel A. P. Murray Pamphlet Collection, Rare Book and Special Collections Division, Library of Congress (075)

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The Miranda Decision

Chief Justice Earl Warren’s early draft opinion in Miranda v. Arizona shows his thought process regarding the decision that required police to warn an arrested suspect that the government could use any information provided as evidence and to advise the suspect of the right to remain silent and the right to counsel. Warren argued such a warning was required by the Fifth Amendment’s right against self-incrimination. Tracing the history of the right against self-incrimination, Warren recalled the trial of John Lilburne, the seventeenth-century radical politician, who contended that freedom from compulsory self-incrimination was one of the fundamental rights of an English subject.

Earl Warren (1891–1974). Notes concerning Miranda v. Arizona, 1966. Typescript pages with handwritten notes. Earl Warren Papers, Manuscript Division, Library of Congress (044, 044.00.01)

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". . . the Right to Remain Silent. . . .”

A political cartoon by Herblock lampoons the Supreme Court’s decision to hear a the case of United States v. Dickerson, which challenged the constitutional requirement to recite Miranda Rights to an arrested suspect. The case concerned a federal law that Congress passed in 1968 designed to bypass the Supreme Court’s 1966 decision in Miranda v. Arizona . The Court decided that because Miranda was a constitutional decision of the United States Supreme Court, Congress exceeded its authority in passing the law.

Herbert Block (Herblock) (1909–2001). You May or May Not Have the Right to Remain Silent, Depending on Whether the Supreme Court Decides that Nothing It Has Already Said May Be Held against It,” published in the Washington Post, December 8, 1999. Graphite, crayon, porous point pen, India ink, and opaque white over blue pencil underdrawing, with overlays. Prints and Photographs Division, Library of Congress. A 1999 Herblock cartoon © The Herb Block Foundation (069)

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The Struggle to Perfect the Constitution

In an address on the occasion of the bicentennial of the American Constitution, Thurgood Marshall, the first African American justice of the United States Supreme Court, argued that the U.S. Constitution was deeply flawed in its creation and has required substantial change to bring it to its present state. He said, “While the Union survived the civil war, the Constitution did not.” The Civil War and the Fourteenth Amendment provided “a new basis for justice and equality . . . ensuring protection of life, liberty and property of all persons against deprivations without due process.”

Thurgood Marshall (1908–1993). Speech concerning the bicentennial of the United States Constitution, April 2, 1987. Draft typescript. Thurgood Marshall Papers, Manuscript Division, Library of Congress (070, 070.00.01)

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