Posted October 11, 2018 in Membership
By Clifford C. Jacobs
Many of us have heard that the concept of due process originated from the Magna Carta or “Great Charter” issued on June 15th, 1215 in England. However, most of us have never actually read the text that outlined the basis for our current interpretation of due process. The history is quite interesting but would take volumes to properly present, so instead, I will limit this article to a few facts and then simply present the relevant clause that is credited with establishing the basic concept of due process, and its corresponding sections of our constitution. You can delve much deeper into the intriguing history if you are so inclined.
The Magna Carta was the first document ever that was forced upon a King of England by a group of his subjects (powerful Barons) in an attempt to protect their privileges while limiting the King’s powers. King John (a.k.a. John Lackland, December 1166 – October 1216) did, in fact, put his seal on the document (known as the “Articles of the Barons”) which was presented by these Baron’s on June 15, 1215, and in exchange, the Baron’s renewed their oaths of fealty (their pledge of allegiance to the King). On July 15, 1215, the royal Chancery created a formal document to record the agreement. This was the original Magna Carta, which became the law of the land. It stood in opposition to some of the King’s power, which until that time was the unchallenged mere will of the King. One of the clauses which reduced the power of the King was the security clause which allowed a group of 25 Barons to override the King at any time by use of force in a process known as “distraint”. Perhaps this was the first of many checks and balances that are a common occurrence in governments today. A detailed reading of the Magna Carta will unveil many concepts that have become doctrine in most democratic nations.
In the Magna Carta, King John promised 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.” It is easy to see how due process was established here.
A due process clause is contained in both the Fifth and Fourteenth Amendments to the U. S. Constitution. Dealing with the administration of justice, the clauses safeguard us from unlawful denial of life, liberty or property; very similar to the protections called for by the Barons during King John’s reign. For comparison sake, I have included them here.
The Fifth Amendment
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 offense 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.
The Fourteenth Amendment (Section 1 of 5)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Our Supreme Court’s interpretation provides four types of due process protections:
- Prohibiting vague laws, and
- As a means for the incorporation of the Bill of Rights.
I encourage each of you to explore due process further to garner an even deeper appreciation and understanding of this noble livelihood in which we partake.