Two words, due process, that generate volumes of explanation. What do they mean? Where do the words come from?
The words stand for an idea. They constitute a label for a notion that we have in our heads. Like most notions we have in our heads, due process is a bit malleable. Not very malleable, perhaps, but enough.
We trace our notion, that is the British and then the American, back to Magna Carta. The Barons at Runnymede in 1215 were fed up with despotic King John and decided to do something about it. They didn't quite write a Declaration of Independence, as Thomas Jefferson and the American Colonies did in 1776, but the Barons did something fairly momentous.
They drew their swords, figuratively speaking, and maybe even literally. At swordpoint, they forced King John to sign an agreement or charter. This great charter provided that no more would the king take the property of the barons, and they had a lot of property otherwise they wouldn't have been barons, without resort to law. The barons wanted the right to say, "Not so fast, I want to be heard about this taking. And if my entitlement is greater than yours, you can't take it. I want a hearing. You haven't been listening to me. You'd better listen, otherwise, see this sword?"
That's due process. The right to be heard, and not to be heard just by the king or his loyal agents, the king-appointed judges, but by some neutral arbiter. Such as a jury of one's peers. Fellow nobles, later commoners.
As stated, we trace the idea back to Runnymede in 1215. But that's only because the principle is SO old that to trace it back further would be a nuisance and close to 800 years seems long enough to be impressive.
The actual idea of due process probably goes back to some time before we learned to live in caves. When Og, the clan leader, accused Mog, a tribal member, of committing some offense such as child abuse and Mog happened not to be guilty this time, Mog probably spoke up in his own defense. Og probably couldn't have shut him up without having to answer to his fellow clan members.
To have punished Mog without letting him speak, and call Og's son, with whom he happened to be out hunting at the time of the crime, as a witness, would have been seen as unfair. The punishment would have been regarded as illegitimate. Og would have lost stature in the community of which he was chief. So Og had to let Mog speak and call Og's son, Blog, to testify as a witness. An early trial. Due process. If the assembled tree-dwellers agreed that Mog was out hunting with Blog on the day of the crime, there'd be no sense in punishing him, would there. And now that Mog was acquitted, he was now free to marry Og's daughter, Slog. And everybody lived happily ever after. Because of due process.
Even a chimp knows when it has been wrongly punished. My authority for this is Holmes. Holmes said that even a dog can tell the difference between being kicked and being stumbled over. He doesn't say where he got that. So I don't say where I got the bit about the monkeys. Probably from the same place. I made it up. But it sounds good, doesn't it?
The Barons at Runnymede didn't use the words "due process." What they said, actually, was, that their property, and their lives and freedom, could not be taken except after a trial whose outcome was decided "by a jury of their [or our] peers." [The correct quote is on the heading of this Blawg. Raise your eyes and wonder.]
By peers they must've meant other barons. Who else would embody the requisite sympathy for landed estates and against arbitrary expropriation by the king and his appointed judges? Not the serfs, I don't suppose.
We all want a jury of our peers. I represented a native of the ancient walled city of Lucca, Italy who shot his unarmed neighbor five times. In self-defense, of course. Nasty neighbor. What kind of jury would you like, I asked out loud one day. "I want twelve Lucchese 'dentra mura' (from within the walls)," he replied.' I'm sure he did.
This procedure where you get a hearing is called due process of law. It means you get heard out. You have your day in court. It's supposed to be fair. When government does something really important, such as take your land or your life or liberty (throw you in jail or take your life) you naturally want a chance to be heard.
Sometimes you get a full blown jury trial, and sometimes you don't. There are no jury trials in divorce and custody cases. Aren't kids important? Not enough to require a jury trial over a change in custody, apparently.
What about prisoners, do they get a jury trial when they get written up and punished administratively, such as by being placed in a more uncomfortable cell? No. Due process has its limits. The limit concerns how much process is due.
A prisoner, if the administrative punishment is serious enough, may be entitled to an administrative hearing before a prison staff member. Not quite the same as a jury of the prisoners peers, but there you go, reaching the limits of practicability.
In the U.S., we've added a whole new dimension to the idea of due process. We call the right to a fair hearing kind, meaning notice and a fair opportunity to defend, 'procedural due process,' i.e. the old-fashioned or classic kind.
But our 14th Amendment (ratified 1868), enacted after the Civil War, provides that "No state shall...deprive any person of life, liberty, or property without due process of law."
The word 'liberty' turns out to be a balloon word, elastically capable of being blown up large enough to contain a whole world of rights that aren't set out anywhere in the text of the constitution. When someone objects to an asserted new right on the ground that is found nowhere in the Constitution, the proper rejoinde is, "Have you looked to see what 'liberty' includes lately?"
Liberty includes lately the right of married people to use contraceptives. Lately as of 1964 in Griswold v. Connecticut. Expanded further to include unmarried people and even minors. As a matter of privacy. The word privacy is nowhere found in the Constitution, but there are several provisions that protect the right, so it must be there in background, at least. So said Justice William O. Douglas, a former law professor and no mean interpreter of the Constitution and developer of the word liberty.
Douglas pointed to the guarantees against quartering troops in the home (3rd Amendment) and against unreasonable seizures (4th Amendment) and others, and concluded that what they were really trying to accomplish was to keep government off the backs of the people absent compelling need. And he saw no need for government to peek into bedrooms and the back seats of automobiles. Why would government need to do that, he must've wondered, because he wrote for a court that outlawed it.
He found the right to privacy in the "penumbras and emanations" of textual guarantees of the Constitution. His antennae were out, to have discerned those. Penumbras are shadows. Emanations are radiation. Pretty clever for Douglas to have seen the invisible, right? That's the thing about legal notions. They exist, invisibly, in our heads until we put them into words and carve them in stone.
"Equal Justice Under Law," it says, carved in stone, on the lintel over the entrance to the Supreme Court. Nice notion. What does it mean? Different things to different people at different times, I guess, otherwise Thomas Jefferson might have had to write in a few exceptions when he wrote, in the Declaration, "All men are created equal," for he owned slaves, along with much of the country for which he was writing.
But it was a good thing he wrote it the way he did, because that allowed us to change the notion around over time, after a lot of struggle, still underway. By using few words, and those elastic, we can change the meaning, hence the rules, over time.
Change, of course, meets resistance. But that's a whole 'nother topic.
To wind up the business about 'liberty' being an elastic term that includes an unknown number of rights that we can call liberty if we want, the right to privacy in contraception morphed into the constitutional right of a woman to control her own bodily functions including whether to bear or beget a child, the famous abortion right that has been so controversial following Roe v. Wade.
Recently in Lawrence v. Texas (2003), overruling Bowers v. Hardwick (1987), the rights of gays not to be treated as an exception to the equal protection guaranty was announced on due process liberty grounds. Two guarantees were in play here, with Justice Anthony M. Kennedy writing for the Court on liberty/due process grounds, which includes the privacy right, and Justice O'Connor agreeing with the result on equal protection grounds. By protecting the privacy of gays on liberty grounds, the Court supports the privacy right for all of us in our intimate affairs.
Due process affords us the right to decide for ourselves as to how to lead our lives when it comes to private choices that busybodies, neighbors, and government has no right to stick their noses in. This is the principle known in English, for centuries, as "Mind your own business." It is the right to be "let alone," as Justice Brandeis described it.
To distinguish these rights that flow from the substance of the word liberty from procedural due process, above, they are called 'substantive due process' rights. Some scholars criticize such rights as non-existent and just made up by the justices of the Supreme Court as they go along, "activist judges" they call them, but where would we be without them.
Do you think it likely that a constitutional amendment would pass protecting the right of teenagers and unmarried people to use contraceptives, have abortions, form same sex relationships and express them intimately? I doubt it.
Because the Court has the right, make that power, to interpret the Constitution and to declare laws found by the justices to be in conflict with it as unconstitutional, critics, usually conservative critics opposed to non-textual change outside the amending process, claim that the Court is acting undemocratically as a super-legislature and thus over-riding the will of the people.
Liberty lovers, by contrast, accept the legal slight of hand by which the non-elected branch nullifies the work of the democratically elected bunch, and call this thwarting the tyranny of the majority.
So there you have due process, procedural and substantive, in a nutshell, and I'm going for a walk, where I think up more of these explanations. That's what I do. I teach Con-law, in case any of the visitors are unaware.