10 Things You Probably Didn't Know About Due Process

• September 30, 2012
• by Kimberly Faber

As September 25th approaches and with it the first annual National Due Process Day, process servers and legal professionals across the country are spreading the word and getting ready to celebrate. Most process servers know exactly what aspect of due process their professions are protecting, but there are a lot of things in the history and specifics of the Constitution that you might find surprising.

Here are 10 things you probably didn’t know about due process:

1. Due process was developed from clause 39 of the Magna Carta in England.
   It was derived from the following passage: 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 judgement of his equals or by the law of the land.
2. Though due process is still upheld in the U.S., it no longer exists in England.
   When English and American law diverged, due process was upheld by the United States but not in England. Though similar concepts still exist in what’s known as natural justice and rule of law, neither English concept compares exactly with American due process.
3. Due process provides four basic protections:
   - Procedural due process
   - Substantive due process
   - A prohibition against vague laws
   - the vehicle for the incorporation of the Bill of Rights
4. If the average citizen cannot understand a law, it is deemed void due to vagueness, a protection that falls under due process of law.
   Essentially, if the average citizen of the United States can’t understand who a law is regulating, what conduct or actions it is prohibiting, or what punishment they might incur, the law is rendered void. Essentially, if the law isn’t written in a way that the average person can understand, it is depriving citizens of their due process rights.
5. Substantive due process overlaps protection with several other amendments.
   Substantive Due Process (from the Fourteenth Amendment) overlaps the rights in the first eight amendments, further protecting voting rights, free speech, and other laws. Essentially, substantive due process protects fundamental rights.
6. New York State asked Congress to add due process to the Constitution.
   New York asked Congress to add a due process clause to the Constitution and was the only state to do so. In 1788, the state proposed the following wording: No Person ought to be taken imprisoned or diseased of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty, or Property but by due process of Law.
   
   New York also inducted a statutory bill of rights in 1787 that included four separate due process clauses, though Secretary of the Treasury Alexander Hamilton commented that based on the definition of due process they cannot be applied to the legislature.
7. James Madison drafted the due process clause.
   Madison revised New York’s proposed language for a due process clause, and drafted the following passage which was later adopted by Congress: Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed.
8. Due process is the only phrase that appears twice in the Constitution.
   It appears in the Fifth Amendment and in Section 1 of the Fourteenth Amendment.
   - The Fifth Amendment:
   No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
   - The Fourteenth Amendment:
   All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
9. Even though the due process clause appears twice in the Constitution it is interpreted identically.
   To quote Supreme Court Justice Felix Frankfurter, who served from 1939-1962, “To suppose that due process of law meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.”
10. Prior to 1791, no due process wording appeared in the U.S. Constitution.
    No state or federal constitution in the U.S. included the actual term due process until the federal Bill of Rights was ratified in 1791.

Fun facts aside, process servers play a fundamental role in protecting every citizen’s due process rights. Don’t forget to join your peers and others in the legal profession in celebrating this important right. For valuable resources, more information, and to embed the National Due Process Day badge on your site, visit the National Due Process Day Page.