Significance of the Due Process Concept






Meaning, History, and Significance of the Due Process Concept


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Due process is one of the most debatable concepts in the modern criminal justice system. The purpose of this paper is to revisit the history, meaning, and significance of the due process concept. The paper includes a brief review of Magna Carta as the foundation for developing the due process concept and philosophy. The progress made in the evolution of due process before 1868 is also mentioned. The paper confirms the centrality of due process in contemporary criminal justice. The controversies surrounding its meaning are also noted. The paper covers the notorious debate involving justices Frankfurter and Black. A brief mention of the substantive-procedural controversy is included. The separation of powers and its relation to the due process concept is discussed. Implications for the future of justice are included.

Keywords: due process, Magna Carta, criminal justice, separation of powers.






Meaning, History, and Significance of the Due Process Concept

Due process remains one of the most debatable, controversial, and ambiguous concepts underpinning the philosophy and practice of criminal justice. Since the noble times of Magna Carta Libertarium until present, dozens of high court justices, legal scholars, and philosophers have struggle to produce a universal, unifying meaning of the due process construct. Despite the enormous knowledge and practice resources invested in developing the current body of theory and research, the exact meaning of due process has yet to be clarified. In the meantime, with the growing complexity of the issues facing courts, the controversies inherent in the meaning of due process become particularly pronounced. Much of the current debate revolves around the procedural-substantive dichotomy of the due process concept. Another matter of concern is the extent to which the Fourteenth Amendment of the U.S. Constitution as an embodiment of due process incorporates the foundational premises of the Bill of Rights. The profound legacy of the well-known debate involving Justice Frankfurter and Justice Black continues to persist. Still, a new consensus is emerging that the meaning of due process is inseparably linked to the separation of powers, which ensures that no action that could limit the fundamental rights will be taken without the due authorization of law and the criminal justice system.

Without any doubts, due process is the concept which keeps drawing major attention of legal scholars and practitioners worldwide. Since its inception, due process generated acute debates and frequently became a subject of judicial and philosophic scrutiny. In 1945, Leek wrote: "It is notorious that the concept of due process has been the occasion of more litigation than any other single clause in the Constitution" (p. 188). However, although due process is represented in both the Fifth and Fourteenth Amendments to the U.S. Constitution it is the latter that remains an object of professional disagreements. Apparently, the legal community cannot develop a more comprehensive idea of due process and its implications for justice without taking a retrospective journey into the history of the concept. The evolution of due process from Magna Carta until today can shed some light on the meaningful, conceptual, and philosophic controversies surrounding the theory and usage of this multidimensional construct.

This being said, Magna Carta is rightly considered as the starting point in the rapid advancement of Constitutional Law in the western world. Arifi (2015) confirms that it was the first example of a legal limitation imposed on the absolute power of the state. Historical evidence that confirms the centrality of Magna Carta in the evolution of international criminal justice abounds. It was the first proven attempt to shift the legal priorities from the supremacy of the ruler toward the supremacy of law (Arifi, 2015). The significance of Magna Carta in the creation of the modern system of justice can hardly be overstated. It gave rise to an entirely new philosophy of criminal justice and, actually, statehood. Not surprisingly, scholars sometimes describe it as a world-class brand, the gold standard of human rights protection and democracy, which guarantees an unequivocal acceptance of personal liberty, free speech, and life as the fundamental rights protected by states and criminal justice systems worldwide.

Of course, due process as a concept and a foundational pillar of the U.S. criminal justice system did not emerge overnight. It took hundreds of years for the western world to arrive as a harmonious, almost unanimous realization that due process underlies the very purpose and function of criminal justice. However, even in the absence of due process meanings, requirements, and interpretations in law, the provisions of the Magna Carta and similar rules and philosophies kept governing the direction of criminal justice decisions in America. Some of the most important were the Lockean Natural Rights Guarantees, which dominated the legal landscape in America between 1776 and 1868 (Calabresi, 2014). They contained the essential provisions aimed to protect citizens' liberty, life, and property (Calabresi, 2014). They guaranteed that the fundamental rights of individuals were natural, inalienable, and unenumerated (Calabresi, 2014).

Actually, the debate over whether the due process clause incorporates unenumerated rights continues until today. It has considerable implications for how contemporary legal and political issues are being resolved, some of them including gay marriage, substance control, and gun control (Calabresi, 2014). Many of the most notorious cases addressed by the U.S. Supreme Court in the 20th century reinforce the complexity of the due process concept and emphasize the lack of agreement as to what it entails. Roe v. Wade is just one of the numerous illustrations to the complexity and ambiguity of the due process clause. Supreme Court Justices cannot arrive at a unified understanding of whether or not unenumerated rights are present in it (Calabresi, 2014).

The debate centers on the Fourteenth Amendment. Leek (1945) also notes that, although the due process clause finds its substantive reflection in both the Fifth and Fourteenth Amendments to the U.S. Constitution, the latter keeps generating the biggest controversy. It has been the subject of multiple litigations (Leek, 1945). Thus, some justices and legal scholars assume that the Fourteenth Amendment incorporates unenumerated rights (Calabresi, 2014). They ground their observations on the analysis of the Privileges or Immunities Clause of the Fourteenth Amendment (Calabresi, 2014). Their opponents the Fourteenth Amendment is limited in scope to the rights that are specifically enumerated in the U.S. Bill of Rights (Calabresi, 2014). Nevertheless, a common agreement is that due process is entitled to impose explicit limitations on the absolute power of the state in ways that guarantee the protection of inalienable rights of citizens.

Speaking about the rights controversy, one of the most notable debates occurred in the middle of the 20th century between Justice Felix Frankfurter and Justice Hugo L. Black. To put it simply, Justice Frankfurter asserted that the Fourteenth Amendment as an embodiment of the due process clause never incorporated any recommendations or provisions of the Bill of Rights (Amar, 1992). His position was that the Fourteenth Amendment merely required that states followed the rules of liberty and fairness in their decisions and actions (Amar, 1992). Justice Black articulated an entirely different view on the problem, suggesting that the due process clause incorporated all provisions of the Bill of Rights (Amar, 1992). However, unlike his opponent, Black had to recognize that the concept of due process did not have any clear boundaries and was as elastic as rubber (Ball, 1996). Both judges struggled to find a comprehensive meaning of the due process clause. They needed a strong and reliable standard for making decisions in the due process cases coming to courts (Ball, 1996). However, Black's understanding of the concept was more restrictive and balanced than that of Frankfurter. Even though their debate shaped the direction of many future processes in the criminal justice system, it was of little help in an ambitious task to understand the meaning of due process from within. As a result, contemporary judges vary greatly in their interpretations of the due process clause, which markedly contribute to the complexity of the decision making processes in criminal justice.

Some of the biggest issues related to the practice application of due process relate to the procedural-substantive dichotomy, which has historically haunted everyone involved in its study and implementation in the criminal justice system. Another controversy pertains to the scope and limitations of the due process clause. Williams (2010) lists just some of the most typical interpretations of the due process concept. For instance, "positivist" interpretations imply that due process requires "nothing more than that judges and executive officers act in accordance with duly established law, as set forth in legislative enactments and in other provisions of the Constitution" (Williams, 2010, p. 420). Another, "judicial" interpretation of the clause is based on the assumption that any decision to deprive a citizen of the fundamental liberties and rights requires adjudication before a criminal justice body that is authorized to make such decisions (Williams, 2010). Other interpretations of the concept also come into play.

The mere presence of these multiple interpretations suggests that the controversy surrounding the conceptualization of due process is far from resolved. Moreover, it necessitates the use of some constitutional synthesis, which would facilitate the systematization, reorganization, review, and analysis of the multiple meanings implicated by the due process clause. Williams (2010) is right that an original synthetic meaning of the due process concept could be helpful in creating an atmosphere of understanding and purpose in the criminal justice system. Still, a newly emerging consensus is that separation of powers could be deemed as the fundamental embodiment of due process as intended to limit the power of the state in relation to the fundamental rights of citizens.

As the society keeps struggling to limit the omnipotence of the state in relation to their rights and freedoms, scholars develop new theories to explain the exact meaning of due process. One of the latest ones is associated with the separation of powers. By separating law making from law interpreting and law enforcing, the state voluntarily imposed severe limitations on its powers (Chapman & McConnell, 2012). Moreover, the separation of powers had to guarantee that no activity aimed to impose limitations on the unenumerated and inalienable rights of citizens would be taken without adjudication (Chapman & McConnell, 2012). This interpretation of due process has much to do with the present situation in the criminal justice system. The U.S. Supreme Court has become a legal mediator in numerous debates between the American community and the legislative branch of the American government. Dozens of laws and reform propositions were dropped on the basis that the Supreme Court ruled them to be unconstitutional. This position is a logical extension of the "judicial" interpretation of the due process clause proposed by Williams (2010). According to it, if the government is to infringe upon the rights of citizens, it should secure the support of the criminal justice systems in interpreting its rulings. The separation of powers explanation is likely to gain more popularity, as it offers a comprehensive insight into the way due process works. However, future scholars and judges will keep debating as to what the due process clause means and how it should function to ensure optimal legal outcomes for everyone involved in the criminal justice system.

To summarize, due process is one of the most controversial principles underlying the modern system of justice. Its meaning and implications for justice remain a popular object of scholarly debates. These controversies give rise to a whole array of interpretations, which can guide and inform the application of the due process principles in criminal justice decisions. Still, more researchers and legal practitioners recognize the separation of powers as the fundamental component of the due process philosophy. Nevertheless, the philosophic, conceptual, and application controversies surrounding due process are likely to persist into the future. Future judges and scholars will keep debating over how the due process requirements should be followed to ensure optimal legal outcomes for everyone involved in criminal justice.







Amar, A.R. (1992). The Bill of Rights and the Fourteenth Amendment. The Yale Law Journal, 101, 1193-1284.

Arifi, B. (2015). Relevance of Magna Carta to rights of victims of abuse of power. SEEU Review, 11(1), 1-11.

Ball, H. (1996). Hugo L. Black: Cold steel warrior. Oxford: Oxford University Press.

Calabresi, S.G. (2014). On liberty and the Fourteenth Amendment: The original understanding of the Lockean provisos. Northwestern Public Law Research Paper, 14, 1-102.

Chapman, N.S., & McConnell, M.W. (2012). Due process as separation of powers. The Yale Law Journal, 121, 1672-1807.

Leek, J.H. (1945). Due process: Fifth and Fourteenth Amendments. Political Science Quarterly, 60(2), 188-204.

Williams, R.C. (2010). The one and only substantive due process clause. The Yale Law Journal, 120, 408-503.

Significance of the Due Process Concept
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Stottsdale, Arizona | 2017-07-24
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