Due Process

Abstract

What is the origin of due process? How did it develop in the United States, and specifically come to be an important aspect of that nation's law or rights? To understand due process we must understand how it developed and how is categorized within the legal system and where it is situated. As far as criminology and criminal justice are concerned, due process has two major and almost mutually exclusive components. The first is substantive due process, which refers to arbitrary laws and egregious law enforcement misconduct. Accordingly, the remedies for violation of substantive due process are either to enjoin the law in question from being enforced at all or money damages. The second category of due process is procedural and constitutes both enumerated and nonenumerated rights concerned with the fairness of procedures at and tangential to tribunals. Enumerated rights are rights contained in the Bill of Rights that have explicitly been given life and vibrancy by the Supreme Court. Nonenumerated rights concern procedural due process because these rights, though not specifically mentioned, are nonetheless considered essential for fair trials and procedures in the American scheme of justice. A significant aspect of understanding procedural due process involves understanding the specific right and the case law that announced them as such. Another significant aspect of understanding the concept is whether the right has been incorporated – made applicable to the states via the Fourteenth Amendment or exclusively in the province of the federal government. Due process intimately involves the important political and legal concept of exclusion. Due process may also be criticized as being too narrow or not broad enough from a number of different perspectives. What is clear is that due process is essential to understanding the American jurisprudence of rights in criminal contexts, but its application is limited in a more comparative and global assessment of rights and rule of law.