Where did the phrase “due process” come from and what does it mean? Professor Randy Barnett discusses the definition of due process and the history of how the concept protected English citizens under the Magna Carta. Professor Barnett explains where and why the term was included in the Constitution, and how due process protects the rights of American citizens from both the federal and state governments. https://youtube.com/watch?v=BY6OXhH7iIw
The historic function of the due process of law was to prevent arbitrary government power. What makes a law arbitrary is that it's insufficiently supported by reason. That certain people are being treated differently than other people without an adequate justification, or that the liberties of everyone are being restricted without an adequate justification. So the onus under the due process of law is not to identify a fundamental right and then give that right some kind of heightened status that requires heightened justification, rather, it is to ensure that all laws have an adequate justification in reason. That means all laws are within the proper powers of a legislature to enact. In the case of the federal government, it must be a law that is within the enumerated powers of Congress to enact. In the case of a state government, it must be a law that's within the police power of a state to enact. The due process of law in England or the law of the land provision in the Magna Carta was originally applied to the executive branch only to prevent arbitrary deprivation of life, liberty, or property by the crown. Under the constitution the due process of law binds all three branches of government, including the legislative branch. It prevents legislatures from enacting arbitrary laws in the same way the Magna Carta prevented the crown from enacting arbitrary edicts. There are two due process of law clauses in the Constitution. One, in the 5th Amendment, applies to the federal government. The second, in the 14th Amendment, applies to state governments. Every time you have a 1st Amendment challenge to a federal statute, a freedom of speech challenge to a federal statute, this is also a due process of law challenge. Why? Because the due process of law requires a judicial forum in which a citizen can contend that Congress has exceeded its powers by violating the freedom of speech. The same thing with a Commerce Clause challenge. A Commerce Clause challenge is also a due process of law challenge. Why? Because the citizen gets a judicial process in which they can challenge a law as exceeding Congress' power under the Commerce Clause. The due process of law provides a judicial process in which an individual citizen can claim that a particular act of the government is beyond its powers to enact, and the judges will neutrally evaluate that claim.
