Definition of Due Process of Law

"The essential elements of due process of law are notice, an opportunity to be heard, and the
right to defend in an orderly proceeding." Fiehe v. R.E. Householder Co., 125 So. 2, 7 (Fla. 1929).
"To dispense with notice before taking property is likened to obtaining judgement without the
defendant having ever been summoned." Mayor of Baltimore vs. Scharf, 54 Md. 499, 519 (1880).
"An orderly proceeding wherein a person is served with notice, actual or constructive, and has an
opportunity to be heard and to enforce and protect his rights before a court having power to hear
and determine the case. Kazubowski v. Kazubowski, 45 Ill.2d 405, 259, N.E.2d 282, 290." Blacks
Law Dictionary, 6th Edition, page 500.
"Due Process of law implies and comprehends the administration of laws equally applicable to all
under established rules which do not violate fundamental principles of private rights, and in a
competent tribunal possessing jurisdiction of the cause and proceeding upon justice. It is founded
upon the basic principle that every man shall have his day in court, and the benefit of the general
law which proceeds only upon notice and which hears and considers before judgement is
rendered." State v. Green, 232 S.W.2d 897, 903 (Mo. 1950).
"Phrase means that no person shall be deprived of life, liberty, property or of any right granted
him by statute, unless matter involved first shall have been adjudicated against him upon trial
conducted according to established rules regulating judicial proceedings, and it forbids
condemnation without a hearing, Pettit v. Penn., La.App., 180 So.2d 66, 69." Blacks Law
Dictionary, 6th Edition, page 500.
"Due Process of law implies the right of the person affected thereby to be present before the
tribunal which pronounces judgement upon the question of life, liberty, or property, in its most
comprehensive sense; to be heard, by testimony or otherwise, and to have the right of
controverting, by proof, every material fact which bears on the question of right in the matter
involved. If any question of fact or liability be conclusively presumed against him, this is not due
process of law." Blacks Law Dictionary, 6th Edition, page 500.
"Aside from all else, due process means fundamental fairness and substantial justice. Vaughn v.
State, 3 Tenn.Crim.App. 54, 456 S.W.2d 879, 883." Blacks Law Dictionary, 6th Edition, page 500.
Due process is the legal code that the state must venerate all of the legal rights that are owed to a
person under the principle. Due process balances the power of the state law of the land and thus
protects individual persons from it. When a government harms a person without following the exact
course of the law, this constitutes a due-process violation, which offends against the rule of law.
Due process has also been frequently interpreted as limiting laws and legal
proceedings (see substantive due process), so judges - instead of legislators - may define and
guarantee fundamental fairness, justice, and liberty. This interpretation has proven controversial, and
is analogous to the concepts of natural justice, and procedural justice used in various other
jurisdictions. This interpretation of due process is sometimes expressed as a command that the
government must not be unfair to the people or abuse them physically.

Due Process Of Law

The Due Process Clause requires due process-basic procedural rights- and protects substantive rights. Procedural rights
are rights that dictate how the government can legally take away a persons freedom, property, or life. Moreover, substantive
rights secure individuals basic rights as stated in the Fifth Amendment and Fourteenth Amendment. The Fifth Amendment
applies to the federal government whereas the Fourteenth Amendment applies to the states. The right to due process, as

stated in the Fifth and Fourteenth Amendments is the most significant right of all because it serves as an assurance that all
levels of government must function within the law and offer fair procedures.
As stated in the Fifth Amendment, No person shall be deprived of life, liberty, or property, without due process of law. The
government is required apt justification and fair and just legal procedures in order to take away a persons life, liberty, or
property. If The Bill of Rights did not offer such an amendment, any person can be stripped of their life, liberty, or property,
without the government even presenting any lawful grounds. Action denying the process that is due would be
unconstitutional. Furthermore, the Fourteenth Amendment adds, No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States. The city of New Orleans contravened this clause of the
Fourteenth Amendment in the Slaughterhouse Cases of 1873 by refusing butchers the privilege of practicing their profession.
Worried that everyone would start challenging state laws and actions, the Supreme Court ruled against the plaintiffs. The
butchers should not have been denied of practicing their profession leading to lack of support to their family. Another clause
enshrined in the Fourteenth Amendment is nor deny to any person within its jurisdiction the equal protection of the laws.

Due process and the rule of law

JANUARY 6, 2009 BY MANUEL BUENCAMINO 25 COMMENTS
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Last September, agents of the Philippine Drug Enforcement Agency (PDEA) arrested and charged Richard Santos
Brodett, Jorge Jordana Joseph, and Joseph Ramirez Tecson for the use, possession, and sale of illegal drugs.
The PDEA saw it as an open and shut case. Prosecutors from the Department of Justice (DOJ) agreed. But not in
the way the PDEA expected.
The DOJs prosecutors threw out the drug case on the grounds that the PDEA agents acted illegally, carrying out
warrantless arrests and searches.
Chief State Prosecutor Jovencito Zuno explained what happened, The cars rear compartment was forcibly
searched. Therefore, any object seized during the search is inadmissible for having been unlawfully obtained.
He cited two other grounds for dismissing the case:
1. The suspects were arrested indiscriminately thus illegally,
2. the confession of one of the suspects was made without his counsel.
A lawyer for the suspects added, It was a buy-bust, yes, but an illegal buy-bust. Even if they have evidence, that
becomes inadmissible if the evidence was obtained illegally.
PDEA director Dionisio Santiago could only say, Thats always their reason. They will cite you on a technicality.
Well, Mr. Director, technicality is what due process is all about. Due process is what prevents our society from
becoming a police state. Its unfortunate you dont put too much value on due process and the rule of law.
You showed your disdain for the rule of law when you admitted to reporters last May that your agents engage in
farming, police jargon for planting evidence on suspects.
You even justified the illegal practice.
You said,
We sometimes do this although this is against the rule of law. Definitely we only apply this matter to some cases,
like a subject who is publicly known to be peddling drugs but always escapes arrest. This is when we enter the
picture.
But PDEA operatives make sure that they (known drug traffickers) wont know that we put planted evidence. We
are doing this because we want to neutralize big personalities engaged in the illegal drug trade which destroys the
future of the youth.

This is a remedy that we sometimes undertake so that we can put to rest some people. Kesa naman patayin natin
e di plantingan na lang natin para mabilanggo. Alam niyo to kill a cat there are so many ways, pero hindi naming
gagawing very obvious ang planting. (Rather than killing them lets just plant evidence so they go to jail. You know
to kill a cat there are so many ways, but we wont make very obvious the planting.)
Although a few days later you said you only made the remarks in jest, the damage has been done. Henceforth, any
drug case you file will become suspect. There might even be reasonable doubt for all your previous cases. Sadly,
your agency was made inutile by your frivolous remarks.
Theres no doubt Director Santiagos intentions are good but good intentions are no substitute for adhering to due
process and the rule of law. Law enforcers should always remember that they are agents of the law not the law
unto themselves.

What is Due Process of Law?

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By Law n Order
Due Process Of Law is a central concept of Anglo-American constitutional history. It is generally
traced to the Latin phrase per legem terrae (by the law of the land) in the Magna Carta of 1215. In
chapter 39 of that document King John promised: "No free man shall be arrested, or imprisoned, or
disseized, or outlawed, or exiled, or in any way molested; nor will we proceed against him, unless by
the lawful judgment of his peers or by the law of the land." Magna Carta was periodically confirmed by
succeeding sovereigns, and in a statute of 1354, reign of Edward III, the phrase "due process of law"
first appears: "That no man of what estate or condition that he be, shall be put out of land or tenement,
nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due
process of law."
While none of these documents specified what was meant by law of the land, or due process, some
indication is supplied by the Petition of Right of 1628, which prayed that "freemen be imprisoned or
detained only by the law of the land, or by due process of law, and not by the King's special command
without any charge." It was the English understanding of due process that Daniel Webster undertook to
summarize in 1819 in his argument in the Dartmouth College case , where he spoke of due process as
"the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders
judgment only after trial," so that "every citizen shall hold his life, liberty, property, and immunities,
under the protection of the general rules which govern society".
The Fifth Amendment

Due process of law was written into the U.S. Constitution when the Bill of Rights was adopted in 1791.
The 5th Amendment, among other guarantees, provided that no person should be "deprived of life,
liberty, or property, without due process of law." The U.S. Supreme Court held in Barron v. Baltimore
(1833) that this clause was a limitation only on the federal government, not the states.
In practice, the due process requirement of the 5th Amendment has had comparatively little importance.
In federal criminal trials it is pushed into the background by the other, more specific guarantees of the
Bill of Rights, such as the 4th Amendment protection against unreasonable searches and seizures, the

5th Amendment guarantee against self-incrimination, and the 6th Amendment right to the assistance of
counsel. As a protection for property rights, due process is partially overshadowed by another 5th
Amendment provision, namely, that private property shall not be taken for public use without just
compensation. Nevertheless, due process has been useful in imposing general standards of fairness on
government administrative proceedings, requiring notice, fair hearing, and opportunity for judicial
review where personal or property rights are affected by administative action. Due process also applies
to military justice, though here again it is a general obligation, backstop-ping the more specific
provisions of the Bill of Rights and the Uniform Code of Military Justice.
The 14th Amendment

It was not until the due process obligation was extended to the states by the 14th Amendment that its
potentialities were realized. Actually, the drafters of the amendment had no great expectations for the
due process clause, because it had been of little consequence in the 5th Amendment. Their attention
was concentrated rather on the preceding clause, which forbids the abridgement of the privileges and
immunities of citizens of the United States. As it turned out, however, in the very first ruling by the
Supreme Court on the 14th Amendment, the Slaughterhouse cases (1873), the privileges and
immunities clause was interpreted so narrowly as to render it practically meaningless. On the other
hand, the 14th Amendment due process clause has come to be the source of more constitutional law
than any other language in the Constitution.
Substantive Due Process

The initial expectation that the due process clause would provide procedural protection for the liberty
and property rights of the newly freed slaves was almost completely confounded. Instead, due process
achieved very quickly a remarkable success in an entirely different role, the protection of the property
rights of businesses and corporations against regulation by state legislatures.
To be sure, the Supreme Court did for a time, as in the Slaughterhouse cases and Munn v. Illinois
(1877), reject efforts to project it into judging the merits of regulatory legislation. In the Munn case, the
court refused to interfere with legislative fixing of the rates charged by grain elevators, with Chief
Justice Morrison R. Waite remarking that for the correction of legislative abuses "the people must
resort to the polls, not to the courts." But 10 years later, while upholding a state prohibition act in
Mitgler v. Kansas (1887), the court asserted that there were limits on state exercise of the police power,
and that the due process clause required the court to "look at the substance of things, whenever they
enter upon an inquiry whether the legislature has transcended the limits of its authority." Thus
substantive due process was born, though it was not until Allgeyer v. Louisiana (1897) that the court
actually set aside a state law on this ground.
During the half century from 1887 to 1937, substantive due process was the Supreme Court's most
distinctive contribution to American constitutional law. The liberty protected by the due process clause
was interpreted to include freedom of contract, and laissez-faire became a constitutional dogma by
which the Supreme Court presumed to judge the wisdom of dozens of state regulatory statutes. In
Lochner v. New fork (1905) it invalidated a 10-hour law for bakers. In Adkins v. Children's Hospital
(1923) it held minimum wages for women unconstitutional. In Burns Baking Co. v. Bryan (1924) it
struck down a law regulating weight of loaves of bread.
It was this assumption of judicial veto power over state legislation that was one of the principal factors
in public rejection of the court under the New Deal. The first judicial signal of reversal of doctrine
came in Nebbia v. New York (1934), when the court upheld the price-fixing of milk. Approval of both
state and federal minimum wage statutes followed in 1937 and 1941. In fact, the court so completely

abandoned substantive due process in the late 1940's and the 1950's that it withdrew entirely from
reviewing state economic legislation, even on the broad grounds of reasonableness. Thus the court
came full circle back to the Munn position that the appeal against legislative errors in the field of
economic regulation is to the polls, not the courts.
Due Process and State Judicial Proceedings

Surprisingly, the Supreme Court proved much more reluctant to assume responsibility for assuring
procedural due process in state court actions, with which it was charged by the 14th Amendment, than
it had been to undertake substantive due process review of state regulatory legislation, where its
authority was much more dubious.
The court's initial assumption was that the 14th Amendment gave it only the right to enforce the basic
and traditional requirements of jurisdiction, notice, and hearing in state judicial proceedings. For three
quarters of a century the court firmly rejected the contention that the specific protections of the 4th
through the 8th amendments, applicable to trial procedures in federal courts, had been made binding on
state courts by the 14th Amendment. In a series of noteworthy decisionsHurtado v. California (1884),
Maxwell v. Dow (1900), Twining v. New Jersey (1908)the court held that the states were not obliged
to enforce the grand jury indictment, jury trial, or self-mcrimination requirements of the Bill of Rights.
The court's view was that it would not be wise to bind the states to any fixed set of procedures in
criminal cases; they should be free to adapt their legal institutions to new situations.
In the Maxwell case, Justice John M. Harlan, dissenting, bitterly contrasted the court's differing
practice with respect to substantive and procedural due process and charged that for the court "the
protection of private property is of more consequence than the protection of the life and liberty of the
citizen." He contended that the drafters of the due process clause had intended to "incorporate" and
impose on the states the same restrictions that the 4th through the 8th amendments imposed on the
federal courts. But his colleagues rejected this argument and asserted that the test of state procedures
was whether they were in accord with the fundamental principles of liberty and justice that inhere in
the very idea of free government. Justice Benjamin N. Cardozo gave the "ordered liberty" view its
classic formulation in Palko v. Connecticut (1937).
The "incorporationists", however, did not give up. In Adamson v. California (1947), led by Justice
Hugo L. Black, they lacked only one vote to overturn the "ordered liberty" standard. A significant
breakthrough came in Wolf v. Colorado (1949), where the Court unanimously agreed that the states
were forbidden by the 14th Amendment to conduct unreasonable searches and seizures. However, a
majority of the court declined to apply to the states the "exclusionary rule" utilized in federal courts to
enforce the 4th Amendment, a rule that provides that evidence secured illegally is inadmissible in court.
During the 1950's the court found it increasingly difficult to rationalize this dual system of
constitutional standards for criminal justice under which state courts would admit illegally secured
evidence, fail to provide counsel for defendants unable to hire them, or compel self-incrimination.
Finally, in Mapp v. Ohio (1961), the court capitulated, overruled the Wolf decision, and held evidence
secured by illegal searches and seizures inadmissible. In prompt succession most of the other
provisions of the 4th through the 8th amendments were also brought into effect in the states. The most
noteworthy rulings in this series were Gideon v. Wainwright (1963), which required state courts to
provide counsel for defendants in criminal cases, and Duncan v. Louisiana (1968), which overruled
Maxwell v. Dow and held that the 6th Amendment required the availability of jury trial in the states
except for petty crimes.

The due process clause has also been the foundation for the Supreme Court's concern with police
investigative methods in the pretrial period. In Escobedo v. Illinois (1964) the court held that a suspect
taken into police custody for questioning about a crime must be given an opportunity to consult a
lawyer. Two years later, Miranda v. Arizona (1966) held that incommunicado police detention is
inherently coercive and that confessions obtained without informing the suspects of their right to
remain silent and to see counsel cannot be used in court.
The First Amendment

Though the Supreme Court quickly read into the due process clause a protection for liberty of contracts
that is nowhere mentioned in the Constitution, it did not discover until 1925 that the 1st Amendment
protections of free speech and press were embodied in the "liberty" guaranteed by the 14th Amendment
and so protected against state infringement. As late as 1922, the court had held that the Constitution did
not impose on the states any duty to recognize the right of free speech. But in Gitlow v. New fork
(1925) the court abruptly announced: "We may and do assume that freedom of speech and of the press .
. . are among the fundamental rights and 'liberties' protected by the due process clause of the 14th
Amendment from impairment by the States."
In 1940 the court, in Cantwell v. Connecticut, for the first time brought the freedom of religion
guarantee of the 1st Amendment into effect upon the states. Justice Owen J. Roberts explained that the
fundamental concept of "liberty" embodied in the 14th Amendment embraces all the liberties
guaranteed by the 1st Amendment. Logically, the court in Everson v. Board of Education (1947) made
the establishment of religion provision applicable to the states.
Conclusion

It is thus the due process clause that has given the Supreme Court its major responsibility for enforcing
the basic freedoms of the American democratic system. Particularly since the 1940's the court, in some
of its most significant decisions, has repeatedly construed state restrictions affecting the liberty to
speak, to print, to assemble, to organize, to demonstrate, to worship. It is the due process clause that has
given the court many of its most difficult problems in reconciling the competing claims of eedom and
order.
In short, the due process clause has had a curious history. It has had two major uses, neither of which
may have been foreseen by its framers. First, it was given a novel substantive interpretation that
authorized the Supreme Court to act like a superlegislature in reviewing state economic regulation.
When the New Deal brought this phase to an end, due process reappeared in an even greater role as the
powerful instrument by which the libertarian language of the Bill of Rights was made effective
throughout the nation.