What’s to do with due process?

by Chuck Brackney

Can the U.S. Congress strip immigrants of the ability to challenge the Immigration and Naturalization Service’s interpretation of a law that barred the ability of legal permanent residents to apply for a waiver of deportation? Can a city seize, by eminent domain, private homes and transfer them to a private property developer for a local economic development project?

Both of these situations give rise to concerns over due process of law. Due process is an issue in many circumstances, including property rights, employment, and criminal cases.

Due process of law is one of the most basic protections citizens have against their government operating in a harmful manner outside of or beyond the scope of the law. It is a cornerstone of our constitutional protections, an assurance that all legal proceedings will be fair, and that a person will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one’s life, liberty, or property.

The idea of due process has its roots in the Magna Carta, in which the lords of England got King John in 1215 to recognize that “no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land”.

The concept of due process of law is mentioned twice in the United States constitution:

  • The 5th amendment holds that “no person shall be … deprived of life, liberty, or property, without due process of law …. “.
  • The 14th amendment says “no state shall … deprive any person of life, liberty, or property, without due process of law …. “.

The 5th amendment guarantee of due process is applicable to actions only of the federal government, while the 14th amendment has been used to apply these protections to actions of state and local governments.

These provisions provide four basic protections: procedural due process; substantive due process; a prohibition against vague laws; and a path for the Bill of Rights to apply to the states.

Procedural due process holds that if you are part of any legal proceeding, you must be informed of when and where proceedings are to take place. You must also be informed of any relevant information, such as charges against you or paperwork that must be completed, so you can adequately prepare.

Modern issues
Modern substantive due process doctrine is considerably more controversial. While procedural due process involves workings of the legal system, substantive due process looks at the content of the laws themselves. It has been relied on to protect rights, such as the right to privacy, under which rights of private sexual activity, contraception, and abortion reside, as well as most of the substantive protections of the Bill of Rights.

Colorado’s constitution also contains a due process provision. Section 25 of Article II reads:

Section 25.  Due process of law.  No person shall be deprived of life, liberty or property, without due process of law.

The Colorado Supreme Court has ruled that this section requires at least the same guarantees as those protected by the due process provisions of the federal constitution.  Colorado may enlarge, but may not abridge, the federal concept of due process.

More importantly to legislators, the Court has held that statutory enactments of the General Assembly must meet the requirements of due process of law under both the United States and Colorado constitutions. The hand of the general assembly is restrained, the Court said, by the due process clause of the state constitution from overturning established principles of private rights and distributive justice.