Due Process — What is it?

Due Process — What is it?
Substantive Due Process or Procedural Due Process?


The Supreme Court in Marshall v. Jerrico, 446 U.S. 238 , tells us that:

The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process. See Carey v. Piphus, 435 U. S. 247, 435 U. S. 259-262, 435 U. S. 266-267 (1978). The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. See Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 344 (1976). At the same time, it preserves both the appearance and reality of fairness, “generating the feeling, so important to a popular government, that justice has been done,” Joint Anti-Fascist Committee v. McGrath, 341 U. S. 123, 341 U. S. 172 (1951) (Frankfurter, J., concurring), by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.

Although The Magna Carta did not use the term, it means the same as “law of the land”:

U.S. Supreme Court in Davidson v. New Orleans,  96 U.S. 97 (1878):
The equivalent of the phrase “due process of law,” according to Lord Coke, is found in the words “law of the land,” in the Great Charter, in connection with the writ of habeas corpus, the trial by jury, and other guarantees of the rights of the subject against the oppression of the Crown. In the series of amendments to the Constitution of the United States, proposed and adopted immediately after the organization of the Government, which were dictated by the jealousy of the States as further limitations upon the power of the Federal government, it is found in the fifth, in connection with other guarantees of personal rights of the same character. Among these are protection against prosecutions for crimes, unless sanctioned by a grand jury; against being twice tried for the same offense; against the accused’s being compelled, in a criminal case, to testify against himself; and against taking private property for public use without just compensation.

Lawers argue against rights

Source: page 551, Cases and Materials on Constitutional Law, Themes for the Constitution's Third Century, by Farber, Eskridge, Frickly - West Publishing
Procedural Due process in the law books makes things confusing.



The U.S. Constitution does not mention due process until the 5th Amendment.  Then it is mentioned again in the 14th Amendment.  But the same words mean different things. So what is going on here?


The U.S. Supreme Court in 1878 case of Davidson v. New Orleans, 96 U.S. 97 , stated that your Constitution is not redundant.  They mean different things.
• The 14th Amendment section 1, “… nor shall any State deprive any person of life, liberty, or property, without due process of law… ”
• The 5th Amendment “… nor be deprived of life, liberty, or property, without due process of law…”

The U.S. Constitution also guarantees the right to redress of grievances.  In the first Amendment.  But the first Amendment does not apply to State Citizens.  Neither does the 5th or the 14th Amendment.


Recommended reading on the topic of the 14th Amendment: 1968 Utah Supreme Court decision in Dyett v. Turner, 439 P.2d 266 has a critical examination of the problems of the 14th Amendment.

The Utah Supreme Court justices said “We feel like galley slaves chained to our oars by a power from which we cannot free ourselves, but like slaves of old we think we must cry out when we can see the boat heading into the maelstrom directly ahead of us;”

In Powe v. U.S. 109 F.2d 147, 149 (1940) the court determined what the term `citizen’ means in federal statutes.  Notice that the term `citizen’, when used in federal laws, excludes State citizens:
“… a construction is to be avoided, if possible, that would render the law unconstitutional, or raise grave doubts thereabout.  In view of these rules it is held that `citizen’ means `citizen of the United States,’ and not a person generally, nor citizen of a State …”

U.S. Supreme Court in U.S. v. Cruikshank, 92 U.S. 542:
“The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other.”

In 1887 the Supreme Court in Baldwin v. Franks 7 S.Ct. 656, 662; 120 U.S. 678, 690 found that:
“In the constitution and laws of the United States the word `citizen’ is generally, if not always, used in a political sense…  It is so used in section 1 of article 14 of the amendments of the constitution…”

The U.S. Supreme Court in Logan v. US, 12 S.Ct 617, 626:
“In Baldwin v. Franks … it was decided that the word `citizen’ …. was used in its political sense, and not as synonymous with `resident’, `inhabitant’, or `person’ …”

14 CJS section 4 quotes State v. Manuel 20 NC 122:
“… the term `citizen’ in the United States, is analogous to the term `subject’ in the common law; the change of phrase has resulted from the change in government.”

U.S. v. Anthony, 24 Fed 829 (1873) “The classification citizen of the United States is distinguished from a Citizen of one of the several states, in that the former is a special class of citizen created by Congress”

125 Fed 322, 325: “The thirteenth amendment is a great extension of the powers of the national government.”