CRS Annotated Constitution

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Some General Criteria

What due process of law means in the procedural context depends on the circumstances. It varies with the subject matter and the necessities of the situation. Due process of law is a process which, following the forms of law, is appropriate to the case and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.1

Ancient Use and Uniformity.—The requirements of due process may be ascertained in part by an examination of those settled usages and modes of proceedings existing in the common and statutory law of England during colonial times, and not unsuited to the civil and political conditions in this country. A process of law not otherwise forbidden may be taken to be due process of law if it has been sanctioned by settled usage both in England and in this country. In other words, the antiquity of a procedure is a fact of weight in its behalf. However, it does not follow that a procedure settled in English law and adopted in this country is, or remains, an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment. Fortunately, the States are not tied down by any provision of the Constitution to the practice and procedure which existed at the common law, but may avail[p.1694]themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary.2

Equality.—If due process is to be secured, the laws must operate alike upon all and not subject the individual to the arbitrary exercise of governmental power unrestrained by established principles of private rights and distributive justice. Where a litigant has the benefit of a full and fair trial in the state courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result.3

Due Process, Judicial Process, and Separation of Powers.—Due process of law does not always mean a proceeding in court.4 Proceedings to raise revenue by levying and collecting taxes are not necessarily judicial, nor are administrative and executive proceedings, yet their validity is not thereby impaired.5 Moreover, the due process clause does not require de novo judicial review of the factual conclusions of state regulatory agencies.6

Nor does the Fourteenth Amendment prohibit a State from conferring upon nonjudicial bodies certain functions that may be called judicial, or from delegating to a court powers that are legislative in nature. For example, state statutes vesting in a parole board certain judicial functions,7 or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade,8 or vesting in a probate court authority to appoint park commissioners and establish park districts9 are not in conflict with the due process clause and present no federal question. Whether legislative, executive, and judicial powers of a State shall be kept altogether distinct and separate, or whether they should in some particulars be merged, is for the determination of the State.10


1 Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884) ; Hurtado v. California, 110 U.S. 516, 537 (1884) .
2 Brown v. New Jersey, 175 U.S. 172, 175 (1899) ; Hurtado v. California, 110 U.S. 516, 529 (1884) ; Twining v. New Jersey, 211 U.S. 78, 101 (1908) ; Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 244 (1944) .
3 Marchant v. Pennsylvania R.R., 153 U.S. 380, 386 (1894) .
4 Ballard v. Hunter, 204 U.S. 241, 255 (1907) ; Palmer v. McMahon, 133 U.S. 660, 668 (1890) .
5 McMillen v. Anderson, 95 U.S. 37, 41 (1877) .
6 Railroad Comm’n v. Rowan & Nichols Oil Co., 311 U.S. 570 (1941) (oil field proration order). See also Railroad Comm’n v. Rowan & Nichols Oil Co., 310 U.S. 573 (1940) (courts should not second–guess regulatory commissions in evaluating expert testimony).
7 Dreyer v. Illinois, 187 U.S. 71, 83–84 (1902) .
8 New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 562, (1905).
9 Ohio ex rel. Bryant v. Akron Park Dist., 281 U.S. 74, 79 (1930) .
10 Carfer v. Caldwell, 200 U.S. 293, 297 (1906) .
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