HUMAN RIGHTS AND DUE PROCESS OF LAW
Published in Athens Human Rights Festival, p. 14 (May 6 & 7, 2006). Also published in Flagpole Magazine, p. 10 (May 3, 2006).
Author: Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.
Most of us are familiar with at least some of the imperishable and
indestructible human rights protected under American constitutional
law. While we may not understand the historical background or
current judicial construction of the right to trial by jury, the right
to counsel, the privilege against self-incrimination, or the right
against unreasonable searches and seizures, almost all of us know that
these rights do exist and that it is unconstitutional for the
government to violate them. However, one of our constitutional
rights, the right to due process of law, is terra incognita to most
Americans, even though it is one of the most important constitutional
rights and, indeed, is arguably the most important constitutional right.
There are two guaranties of due process in the U.S. Constitution.
The Fifth Amendment’s due process clause (ratified in 1791) provides
that no person shall “be deprived of life, liberty, or property,
without due process of law ...” This clause prohibits the federal
government from violating the due process rights of individuals.
The Fourteenth Amendment’s due process clause (ratified in 1868) is
worded similarly, and prohibits the various state governments from
infringing on due process requirements. It provides that no
“State [shall] deprive any person of life, liberty, or property,
without due process of law ...”
The right to due process of law, which historian Charles McIlwaine
called “our greatest constitutional check upon arbitrary infringements
of the liberty of the individual,” originated in 1215 in Magna Carta,
the fountainhead of liberty in Anglo-American history. In section
39, the law of the land clause of Magna Carta, England’s tyrannical
King John was forced by rebellious barons to promise that henceforth no
free man would be arrested, imprisoned, dispossessed, outlawed, or
banished “except by the legal judgment of his peers or by the law of
the land.” By the 14th century Magna Carta’s term “law of the
land” had been replaced by the synonymous term “due process of
law.” Thus, in 1354 Parliament declared that “no man ... shall be
put out of land or tenement, or arrested or imprisoned, or
disinherited, or put to death, without being brought in answer by due
process of law.” (Section 39 remains binding law in England; it
is one of the few provisions of Magna Carta not subsequently repealed
In the late 18th century, due process of law was elevated from
statutory right to the exalted level of constitutional right.
Between 1776 and 1789, 8 American states adopted a constitution with a
law of the land clause. The first constitutional provision with a
due process clause was the federal Bill of Rights, approved in
1791. In the United States, therefore, due process has been a
constitutional right for over 200 years, and today almost every state
constitution, including Georgia’s, has either a due process clause or a
law of the land clause.
As interpreted by federal and state courts, due process mandates
fundamental fairness. When government agents investigate crime,
when they prosecute or try someone for crime, or when (irrespective of
whether any alleged crimes have been committed) government agents
otherwise impinge upon an individual’s freedom or property for any
reason whatever, those agents must act in a fundamentally fair
manner. In judicial proceedings between the government and
individuals, fundamental fairness means that the individual must be
given adequate notice of the proceedings and ample opportunity to be
heard and present his or her side of the case, and that the court’s
judgment must be an impartial decision based on the evidence.
Outside the courtroom, fundamental fairness means that the government
must not engage in conduct that shocks the conscience or that violates
elementary principles of liberty and justice. American courts
have therefore definitively held that due process prohibits police from
torturing or inflicting physical brutality upon citizens, and that a
confession extracted by torture or violence is inadmissible in court,
regardless of whether the confession is truthful. Because it bans
torture, due process is an incalculable right of inestimable
value. Due process makes barbarism by government unconstitutional.
The fairness required by due process of law is not static. What
was fair a century ago may very well no longer be deemed fair today;
and what is fair today may be deemed unfair in future times. Due
process therefore provides a flexible, evolving standard of
protection. As civilization progresses, as notions of humaneness
and decency become more developed, due process offers increasing
protections for the individual.
The establishment of the right to due process of law as a fundamental
human right is one of the greatest achievements of Western
society. The right to due process is, to paraphrase a U.S.
Supreme Court justice, “one of the great landmarks in man’s struggle to
make himself civilized.” It embodies the judgment that
governmental interference with individuals must be constrained by basic
notions of humanity and fair play. It repudiates the dangerous
view that the conduct of those wielding the power of the state is to be
judged according to a no-holds-barred approach.
Due process rights are, in the words of a Maine judge, among “our most
cherished and most important possessions. ... They are what we
live by and what we must continually fight for.”