No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Due process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power. 1 Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved. 2 A basic threshold issue respecting whether due process is satisfied is whether the government conduct being examined is a part of a criminal or civil proceeding. 3 The
appropriate framework for assessing procedural rules in the field of criminal law is determining whether the procedure is offensive to the concept of fundamental fairness. 4 In civil contexts, however, a balancing test is used that evaluates the government's chosen procedure with respect to the private interest affected, the risk of erroneous deprivation of that interest under the chosen procedure, and the government interest at stake. 5
Relevance of Historical Use
The requirements of due process are determined in part by an examination of the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and in the early years of this country. 6 In other words, the antiquity of a legal procedure is a factor weighing in its favor. 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. 7 Fortunately, the states are not tied down by any provision of the Constitution to the practice and procedure that existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary. 8
A court proceeding is not a requisite of due process. 9 Administrative and executive proceedings are not judicial, yet they may satisfy the Due Process Clause. 10 Moreover, the Due Process Clause does not require de novo judicial review of the factual conclusions of state regulatory agencies, 11 and may not require judicial review at all. 12 Nor does the Fourteenth Amendment prohibit a state from conferring judicial functions upon non-judicial bodies, or from delegating powers to a court that are legislative in nature. 13 Further, it is up to a state to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate. 14
The Interests Protected: Life, Liberty and Property
The language of the Fourteenth Amendment requires the provision of due process when an interest in one’s
life, liberty or property is threatened. 15 Traditionally, the Court made this determination by reference to the common understanding of these terms, as embodied in the development of the common law. 16 In the 1960s, however, the Court began a rapid expansion of the
property aspects of the clause to include such non-traditional concepts as conditional property rights and statutory entitlements. Since then, the Court has followed an inconsistent path of expanding and contracting the breadth of these protected interests. The
life interest, on the other hand, although often important in criminal cases, has found little application in the civil context.