First Monday: What is ‘Due process of law?’

Few legal terms have found their way into the popular lexicon the way “due process of law” has. When someone complains that he is being denied “due process,” the person is generally expressing a sense of unfairness about the procedures that were, or will be, used to ascertain the truth of charges of misconduct against him.

That popular understanding of the phrase isn’t too far from the legal meaning of the phrase.

The U.S. Constitution actually contains two “due process” provisions. The due process clause of the Fifth Amendment applies to the federal government. The due process clause of the 14th Amendment applies to state and local governments. Both clauses forbid the government — not private persons, organizations or businesses — from depriving any person of “life, liberty or property” without “due process of law.”

Generally speaking, the rights enumerated in the U.S. Constitution are rights that “We the people” have against the government, not each other.

The constitutional guarantee of due process of law traces its routes to the Magna Carta, the greater charter of rights which King John of England accepted at Runnymede, near Windsor, in 1215. Chapter 39 of the Magna Carta provides that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

A 1354 statute of King Edward III restated that procedural guarantee and substituted the phrase “due process of law” for the italicized phrase.

Fundamentally, due process is about fairness and the rule of law. It protects individuals against arbitrary government actions. Before the government can deprive a person of his life, liberty or property, the due process clause requires that the government give the person notice of the government’s intentions and an opportunity to be heard and to present their objections. As the U.S. Supreme Court explained in a key due process decision, Mathews v. Eldridge (1976), “[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”

Significantly, the Supreme Court has explained that “due process is flexible, and calls for such procedural protections as the particular situation demands.” In other words, due process is not a “one size fits all” proposition. For example, before the state can deprive a person of his liberty for violating a criminal law, the person is entitled to notice of the specific charges against him, a jury trial, the right to call witness and the right to cross-examine the state’s witnesses. Due process in the criminal context also requires the state to prove its case beyond a reasonable doubt, the most rigorous burden of proof under the law.

In other instances, such as certain administrative hearings, the proceedings are often informal, a party may only be entitled to present a written or oral statement of the reasons why he objects to the state’s actions, and lower burdens of proof usually apply.

Other than basic fairness, what fundamental values or interests does due process serve? Two are particularly noteworthy.

First, affording due process to a person subject to potential deprivation of life, liberty or property increases the likelihood that the government’s action will be accurate and correct. The government may be mistaken in its reasons for believing that a person committed a crime, or for believing that an individual’s social security, Medicaid or unemployment benefits should be terminated. Fair procedures increase the likelihood that the outcome of the hearing and government action is factually and legally correct. Due process thus serves an important truth finding-function.

Second, due process serves the important value of respect for human dignity. All persons have a dignitary interest in being heard —in telling their side of the story— before the government takes some action that adversely affects them. As a lawyer for nearly 30 years, and now as a judge, I can state without equivocation that when a party truly feels that she has been heard in court and that fair procedures were followed, she is much more likely to accept the court’s decision as legitimate, even it is unfavorable to her.

I reiterate that the constitutional guarantee of due process of law only applies when the government seeks to deprive a person of life, liberty or property. The due process clauses of the U.S. Constitution don’t govern relations between private persons and entities. Private individuals and entities may voluntary choose to use fair procedures when making important decisions, and there may be compelling practical reasons for them to look to the due process clause for guidance, but legally speaking the due process clauses are irrelevant.

Also, even when the government is involved, not every government benefit constitutes a form of property or liberty subject to the due process clause. For example, a person interviewing for a government job does not have constitutionally-protected property interest in the potential job. The due process clause doesn’t apply to the procedures that the government uses when deciding whether to hire a particular applicant. Other constitutional guarantees, such as equal protection, may apply, but not the due process clause.

To sum up, the popular notion of “due process” as something that protects individuals against unfair and arbitrary governmental actions captures the essence of the Fifth and Fourteenth Amendments’ guarantees of due process of law. Just remember that those guarantees protect individuals in their relationships with federal, state and local governments, not other private persons or entities. And remember too that due process of law is not a one-size-fits-all proposition.

That’s it for this First Monday. Next month we’ll discuss the Supreme Court’s power to declare laws unconstitutional, known as judicial review, and why that power is often so controversial.

Daniel J. Klau is a judge of the Connecticut Superior Court. Any opinions expressed herein are solely his own and do not necessarily reflect the views of the Judicial Branch. Before his appointment to the bench, Judge Klau served as a law clerk to former Connecticut Supreme Court Chief Justice Ellen A. Peters and then engaged in the private practice of law for 27 years, focusing on appellate, First Amendment and open government litigation. He is an adjunct faculty member at UConn School of Law, where he has taught privacy law since 2003. While in private practice he received numerous awards for his work on behalf of the First Amendment, open government and freedom of information, including the Connecticut Council on Freedom of Information’s 2018 Outstanding Service Award.