The standards for conducting legal and administrative proceedings pursuant to tradition, law, and established rules and customs with the goal of protecting the rights of individuals and ensuring fairness and impartiality. See Dartmouth College v Woodward (US) 4 Wheat 518, 4 L Ed 629), wherein Daniel Webster declared that by due process of law is meant 'the law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.”
Our Constitution provides that no person shall be 'deprived of life, liberty, or property, without due process of law.' The Fifth Amendment applies this limitation to the Federal Government, and the Fourteenth Amendment imposes the same restriction on the States. The four words -- due process of law -- have been the center of substantial legal debate over the years. See Chambers v. Florida, 309 U. S. 227, 309 U. S. 235-236, and n. 8 (1940). Some might think that the words themselves are vague. But any possible ambiguity disappears when the phrase is viewed in the light of history and the accepted meaning of those words prior to and at the time our Constitution was written.
'Due process of law' was originally used as a shorthand expression for governmental proceedings according to the 'law of the land' as it existed at the time of those proceedings. Both phrases are derived from the laws of England, and have traditionally been regarded as meaning the same thing. The Magna Carta provided that: 'No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. 9 Hen. 3, C. 29 (1225). A similar provision appeared in c. 39 of the original issue signed by King John in 1215.'
Later English statutes reinforced and confirmed these basic freedoms. In 1350, a statute declared that 'it is contained in the Great Charter of the Franchises of England that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land. . . . 25 Edw.3, Stat. 5, c. IV.'
Four years later, another statute provided '[t]hat no Man, of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death without being brought in Answer by due Process of the Law. 28 Edw. 3, c. III.'
And, in 1363, it was provided 'that no man be taken or imprisoned, nor put out of his freehold, without process of law.' 37 Edw. 3, c. XVIII.
Drawing on these and other sources, Lord Coke, in 1642, concluded that 'due process of law' was synonymous with the phrase 'by law of the land.' Coke's Institutes, Second Part., 50 (1st ed. 1642). One of the earliest cases in this Court to involve the interpretation of the Due Process Clause of the Fifth Amendment declared that '[t]he 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.' 59 U. S. 276 (1856).
While it is thus unmistakably clear that 'due process of law' means according to 'the law of the land,' the Court has not consistently defined what 'the law of the land' means, and members of the Court frequently continue to misconceive the correct interpretation of that phrase. In Murray's Lessee, supra, Mr. Justice Curtis, speaking for the Court, stated: 'The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative, as well as on the executive and judicial, powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law' by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this, the answer must be two-fold. We must examine the constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.' Id. at 59 U. S. 276-277. Cf. 11 U. S. Hudson, 7 Cranch 32 (1812), in which the Court held that there was no jurisdiction in federal courts to try criminal charges based on the common law, and that all federal crimes must be based on a statute of Congress.
Later, in Twining v. New Jersey, 211 U. S. 78 (1908), Mr. Justice Moody, again speaking for the Court, reaffirmed that 'due process of law' meant 'by law of the land,' but he went on to modify Mr. Justice Curtis' definition of the phrase. He stated: 'First. What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. . . .' 'Second. It does not follow, however, that a procedure settled in English law at the time of the emigration, and brought to this country and practiced by our ancestors, is 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 the American jurisprudence like a straight-jacket, only to be unloosed by constitutional amendment. . . .' 'Third. But, consistently with the requirements of due process, no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizen in his private right, and guard him against the arbitrary action of government.' Id. at 211 U. S. 100-101. Cf. the views of Mr. Justice Iredell in 3 U. S. 398 (1798). In those words is found the kernel of the 'natural law due process' notion by which this Court frees itself from the limits of a written Constitution and sets itself loose to declare any law unconstitutional that 'shocks its conscience,' deprives a person of 'fundamental fairness,' or violates the principles 'implicit in the concept of ordered liberty.' See Rochin v. California, 342 U. S. 165, 342 U. S. 172 (1952); Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325 (1937). While this approach has been frequently used in deciding so-called 'procedural' questions, it has evolved into a device as easily invoked to declare invalid 'substantive' laws that sufficiently shock the consciences of at least five members of this Court. See, e.g., Lochner v. New York, 198 U. S. 45 (1905); Coppage v. Kansas, 236 U. S. 1 (1915); Burns Baking Co. v. Bryan, 264 U. S. 504 (1924); Griswold v. Connecticut, 381 U. S. 479 (1965). This concept is completely at odds with the basic principle that our Government is one of limited powers, and that such an arrogation of unlimited authority by the judiciary cannot be supported by the language or the history of any provision of the Constitution. See, e.g., Adamson v. California, 332 U. S. 46, 332 U. S. 68 (1947) (dissenting opinion); Griswold v. Connecticut, supra, at 381 U. S. 507 (1965) (dissenting opinion).
Modernly the court expouses this mantra for the meaning of Due Process. For all its consequence, 'due process' has never been, and perhaps can never be, precisely defined. '[U]nlike some legal rules,' the Court has said, due process 'is not a technical conception with a fixed content unrelated to time, place and circumstances.' Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 895. Rather, the phrase expresses the requirement of 'fundamental fairness,' a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise which must discover what 'fundamental fairness' consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.
The case of Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 335, propounds three elements to be evaluated in deciding what due process requires, viz., the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions. Courts must balance these elements against each other, and then set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.