{"id":10489,"date":"2017-12-09T04:48:18","date_gmt":"2017-12-09T04:48:18","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=10489"},"modified":"2018-07-06T17:43:32","modified_gmt":"2018-07-06T17:43:32","slug":"due-process-of-law","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=10489","title":{"rendered":"due process – the conduct of legal proceedings according to established rules, forms, 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"},"content":{"rendered":"

\u00a0\u00a0\u00a0\u00a0 This page is continued from Legal Precepts Adopted into U.S. Law (from Europe) through the Constitution<\/a> >>>> Roman \u201cCivil Republic\u201d State Law<\/a> >>>> State Law Consists of Two Parts<\/a> >>>> Adjective Law<\/a> >>>> Procedure<\/a> >>>> Process<\/a>:<\/span>
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due process<\/span>:<\/span><\/span>
\n<\/strong>(16C)<\/span><\/span><\/p>\n

1.<\/strong>\u00a0<\/span>The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including<\/span> notice<\/a> and the right to a<\/span> fair hearing<\/a> before a tribunal with the power to decide the case.<\/span><\/strong> \u2014 aka<\/span> due process of law<\/em><\/span><\/strong>; due course of law<\/em><\/strong><\/span>. [1]<\/span>
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1. A phrase impossible of precise definition; one which asserts a fundamental principle of justice rather than a specific rule of law.<\/span> 16 Am J2d Const L \u00a7 545<\/span>. <\/span><\/span><\/strong><\/p>\n

Law in the regular course of administration through courts of justice according to those rules and forms which have been established for the protection of private rights.\u00a0<\/span> Endicott-Johnson Corp. v Smith<\/em>, 266 US 291, 69 L Ed 293. 45 S Ct 63<\/span>.<\/span><\/span><\/strong><\/p>\n

\u201cDue 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 by hearing upon<\/span> notice<\/a>.\u00a0 State ex rel. Sweezer v Green<\/em>, 360 Mo 1249, 232 SW2d 897, 24 ALR2d 340<\/span>. <\/span><\/span><\/strong><\/p>\n

\u201cDue process of law” requires in each case an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims, and on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in any progressive society.<\/span>\u00a0 Rochin v Califomia<\/em>, 342 US 165, 96 L Ed 183, 72 S Ct 205, 25 ALR2d 1396<\/span>.<\/span><\/span><\/strong><\/p>\n

One of the most famous and perhaps the most often quoted definition of \u201cdue process of law\u201d is that given by Daniel Webster in his argument in the Dartmouth College case.<\/strong><\/span> (Dartmouth College v Woodward<\/em> (US) 4 Wheat 518, 4 L Ed 629<\/span><\/strong>), wherein he declared that by due process of law is meant \u201c<\/span>the law which bears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.<\/span>“<\/span><\/strong> [2]<\/span><\/span><\/p>\n

1. Law administered through courts of justice, equally applicable to all under established rules that do not violate fundamental principles of fairness.\u00a0 Whether a person has received due process of law can only be determined on a case-by-case basis.\u00a0 In all criminal cases, however, it involved, at the very least, the right to be heard by a fair and impartial tribunal, the defendant’s right to be represented by counsel, the right to cross-examine witnesses against him, the right to offer testimony on his own behalf, and the right to have advance notice of trial and of the charge sufficient in detail and the point of time to permit adequate preparation for trial.\u00a0 Due process requirement for criminal prosecutions are considerably more rigorous\u00a0 than those for civil cases.\u00a0 “Due process of law is guaranteed by both the Fifth Amendment and the Fourteenth Amendment.<\/strong> [3]<\/span><\/p>\n<\/div>\n

\u00a0 \u00a0 Excerpt from Alexander Hamilton’s<\/span>\u00a0Remarks on an Act for Regulating Elections<\/a>\u00a0<\/em>(1787):<\/span><\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cThe words \u2018due process\u2019 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.<\/span>\u201d\u00a0 <\/strong>[4]<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from\u00a0Murray\u2019s Lessee v. Hoboken Land & Improvement Co<\/a>. (1856):<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cThe words, \u2018due process of law,\u2019 were undoubtedly intended to convey the same meaning as the words, \u2018by the law of the land,\u2019 in Magna Charta.<\/span>\u201d <\/strong>[5]<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from Thomas M. Cooley’s\u00a0A Treatise on the Constitutional Limitations<\/a><\/em>(1868):<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cDue 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.<\/span>\u201d <\/strong>[4]<\/span><\/p>\n

Essential Elements Intrinsic to Due Process:<\/strong><\/span><\/p>\n

due notice<\/a><\/span> – often required by law or agreement, a notice<\/a> ensure a person<\/strong><\/span><\/p>\n

(1) has actual knowledge of it;
\n(2) has received information about it;
\n(3) has reason to know about it;
\n(4) knows about a related fact;
\n(5) is considered as having been able to ascertain it by checking an official filing or recording.\u00a0<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from\u00a0Mullane v. Central Hanover Bank & Trust Co<\/a>\u00a0<\/em>(1950):<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cAn elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice<\/a> 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. . .\u00a0 The notice<\/a> must be of such nature as reasonably to convey the required information.<\/span>\u201d <\/strong>[5]<\/span><\/p>\n

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Various Forms of Due Process:<\/strong><\/span><\/p>\n

procedural due process<\/strong><\/span><\/a> – a regular course of justice, which is not unreasonable or<\/span> arbitrary<\/a>, with minimal requirements of\u00a0notice<\/a> and a hearing especially if the deprivation of a significant life, liberty, or<\/span> property<\/a> interest may occur, in pursuance of an effective remedy secured by the law and the state.<\/span><\/strong><\/span><\/p>\n

substantive due process<\/span><\/a> – 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, and the freedom from<\/span> arbitrary or capricious<\/a> in making, interpreting, or enforcing the law.<\/span><\/span><\/strong><\/p>\n