DUE PROCESS
due process.The conduct of legal proceedings according to established rules and principles
for the protection and enforcement of private rights, including notice and the right to a fair hearing
before a tribunal with the power to decide the case. — Also termed due process of law; due course
of law. See FUNDAMENTAL-FAIRNESS DOCTRINE. [Cases: Constitutional Law 251–320.5.
C.J.S. Constitutional Law §§ 455, 461–467, 470, 501, 503, 513, 518, 540, 557, 576–581, 585, 587,
596, 612, 614–618, 704, 883, 945–1348, 1350–1396, 1399–1401, 1405–1427; Right to Die§ 2;
Zoning and Land Planning § 23.]
“The words ‘due process’ have a precise technical import, and are only applicable to the
process and proceedings of the courts of justice; they can never be referred to an act of
legislature.” Alexander Hamilton, Remarks on an Act for Regulating Elections, New York
Assembly, 6 Feb. 1787, in 4 Papers of Alexander Hamilton 34, 35 (Harold C. Syrett ed., 1962).
“The words, ‘due process of law,’ were undoubtedly intended to convey the same meaning as
the words, ‘by the law of the land,’ in Magna Charta.” Murray’s Lessee v.Hoboken Land &
Improvement Co., 59 U.S. (18 How.) 272, 276 (1855) (Curtis, J.).
“Due process of law in each particular case means, such an exertion of the powers of
government as the settled maxims of law sanction, and under such safeguards for the protection of
individual rights as those maxims prescribe for the class of cases to which the one in question
belongs.” Thomas M. Cooley, A Treatise on the Constitutional Limitations 356 (1868).
“An elementary and fundamental requirement of due process in any proceeding which is to
be accorded finality is notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections…. The notice must be of such nature as reasonably to convey the required information.”
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657
(1950)(Jackson, J.).
economic substantive due process.The doctrine that certain social policies, such as the
freedom of contract or the right to enjoy property without interference by government regulation,
exist in the Due Process Clause of the 14th Amendment, particularly in the words “liberty” and
“property.”
procedural due process.The minimal requirements of notice and a hearing guaranteed by the
Due Process Clauses of the 5th and 14th Amendments, esp. if the deprivation of a significant life,
liberty, or property interest may occur. • The Supreme Court has ruled that the fundamental
guarantees of due process apply to children as well as to adults and that they apply in situations in
which a juvenile may be deprived of liberty even though the juvenile proceedings may be labeled
civil rather than criminal. In re Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967). In that case, the Court
held that an accused child was entitled to notice of the charges, the privilege against
self-incrimination, the right to confront witnesses, and the right to summon witnesses on his or her
own behalf. Justice Abe Fortas wrote the majority opinion in Gault, and Chief Justice Earl Warren
predicted that it would come to be called the “Magna Carta for juveniles.” [Cases: Constitutional
Law 251.5. C.J.S. Constitutional Law §§ 946, 968–969.]
substantive due process.The doctrine that the Due Process Clauses of the 5th and 14th
Amendments require legislation to be fair and reasonable in content and to further a legitimate
governmental objective. [Cases: Constitutional Law 251.2. C.J.S. Constitutional Law §§ 964,
970–975.] [Blacks Law 8th]