| Due Process of Law is one of the foundational concepts in Anglo-American law. Its history stretches back at least as far as Magna Carta (1215). The guarantee of due process came to America with the colonists and was included in the U.S. Constitution in the Fifth and Fourteenth Amendments. It is especially in the context of the Fourteenth Amendment that legal appeals to due process have become ubiquitous, contentious, and confusing. In the past 100 years, due process has been used to: protect "fundamental" rights from abridgement by state or federal governments, regardless of the process employed; to increase the amount of process required before government benefits can be discontinued; and to allow public interest groups to shape policy-making. At the same time due process protection of property has all but disappeared.; Why has this phrase, "due process of law," become so protean and so powerful? Why, after almost 800 years, is there no consensus about what it means? In order to answer these questions and to understand how the interpretation of due process has evolved over time, I conducted a comparative analysis of primary and secondary sources in the areas of English legal history, colonial American history, constitutional law, and administrative law. I found that these disciplines rarely inform one another. While it is common to acknowledge the long and venerable history of due process, scholars and judges ignore its traditional meanings and uses.; I also found that many of the means by which the Supreme Court has expanded the protection of the due process clauses in the past 100 years are not entirely novel. For example, due process was used in a "substantive" way in the Case of Monopolies, in 1602. More generally, due process has been claimed, almost from the beginning, as a guarantee that dealings with government will be "fair." While the Supreme Court has clearly gone beyond any reasonable interpretation of the due process clauses, the impetus to use due process to protect rights not included in the Constitution and those foreclosed by narrow interpretations of other clauses is understandable. |
