Due Process

• Pages: 1-17
• Author: Samuel Issacharoff

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Chapter 1

DUE PROCESS

In the American legal system, the term “procedure” refers to two

separate bodies of law. The first system of p rocedure is the

constitutional command of due process. The Fifth and Fourteenth

Amendments to the Constitution restrict all governmental actors,

whether federal, state, or local, from taking action s that impinge

upon life, liberty, or property. The scope of these Amendments has

been primarily defined by judicial case law, w hich has given specific

form to the open-textured outlines of the Constitution. The second

system of proced ure is the internal operating commands of courts,

which in the federal courts h ave been embodied since 1938 in the

Federal Rules of Civil Procedure. These Federal Ru les aim at

approximating the ideals of a procedural system: the costless

application o f substantive law onto specific disputes in the form of

judicial decisions. Unlike the broad constitutional command of due

process, the Federal Rules are rather detailed, containing a series of

commands that propose to govern all circumstances that migh t

present themselves in the judicial system, regardless of the merits of

the controversy. The Rules not only attempt to supply specific

commands for courts, but in their operation they seek to cover any

kind of civil dispute. Thus , in legal jargon, the sweep of the Rules is

said to be “transsubstantive.”

Despite their different origins and forms, the constitutional

command of due process and the specific rule applications of civil

procedure not only embody many of the same obje ctives, they turn

out to use th e same tools. Both are place holders for an anima ting

conception of fairness that stands behind any system of process.

Process assures regularity in the treatment of similarly situated

parties. Process guarantees against the arbitrariness of either

capricious conduct or tyranny. Process imposes order and the burden

of justification on the exercise of power. In theory, at least, it is

process itself that constrains the powerful and protects the weak.

Procedural order, therefore, can be considered an integral bulwark

against the misuse of state authority. And, perhaps ironically,

process is also a necessary ingredient of a legal system in which even

a state’s use of force against its own citizens must compo rt with the

rule of law.

Whenever government acts, some legal process is necessary—or

“due,” as the Constitution commands—to e nsure fairness. The real

arguments are about how much, and what kind. Those questions

arise not only in the formal constitutional realm, but also when

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DUE PROCESS

Ch. 1

ordinary citizens turn to a court asking that their dispute be resolved

and that a remedy be fashioned. Here too, orderliness and

predictability are the defining features of a system that may lay

claim to being fair and just. Ev en the conflicts that emerge from the

daily interactions of life demand processes that draw from the

highest aspirations of our Constitution.

I. The Emergence of Due Process

The co ncept of due process reflects the central paradox in the

creation of state authority. As framed in the American Co nstitution,

for example, the due process command is directed as a negat ive

limitation on what the state may do to the citizenry. The underlying

question is what is the affirmative role of the state that the

constitutional order assumes.

According to Thomas Hobbes in his Leviathan,

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the answer is

provided by co nsidering life without government. For Hobbes, this

pitiable state of nature allows only a life that is “solitary, poor, nasty,

brutish, and sho rt.” Each pe rson faces the constant threat of bodily

violence, of invasion of the home and of seizure of property, and no

man has an incentive to industry because each lacks security in

investment, in planning, and in the ability to exchange.

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The

response to this disastrous situation, according to Hobbes, is the

creation of the state, a body that can impose order, lift mankind from

the pitiable war of all against all, and secure collective benefits.

Paradoxically, in attempting to escape from the state of nature,

the creation of the governmental state actually magnifies the ve ry

threat that w as ever-present in the state of nature. The state

represents the largest and most powerful entity capable of doing

what Hobbes feared most: inflicting bodily violence, invading the

home, and seizing property. Indeed, all states reserve to themselves

the rig ht to do just that to their citizens, and some (including our

own) even claim the rig ht to punish by dea th. But if this is so, what

is it that differentiates the modern state, which claims political

legitimacy, from the state of nature? The answer must be an abiding

respect for procedural fairness in the imposition of punishment and

the regulation of the conduct of citizens’ lives. The answer, in the

terminology of American law, is due process.

This conception of procedural fairness is at the heart of the

concept of the rule of law, and of its more technically exigent offshoot,

the guarantee of due process. The typical formulation of due process,

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THOMAS HOBBES, LEVIATHAN 88 (Cambridge, 1996) (1651).

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Id. at 89 (noting that in the hypothesized state of nature, “there is no place for

industry; because the fruit thereof is uncertain: and consequently no culture of the

Earth; no Navigation, nor use of the commodities that may be imported by Sea; no

commodious building . . . ”).