Due process is a fundamental right that ensures that legal proceedings are fair and impartial, and that individuals are protected from arbitrary or unjust actions by the government.
The fundamental rights of due process are a set of legal protections that ensure fair treatment and procedural justice in legal proceedings. These rights vary depending on the country and legal system, but some of the most common rights of due process include:
- Right to notice: Individuals have the right to receive notice of legal proceedings against them. This gives them the opportunity to prepare a defense and respond to the charges.
- Right to a fair hearing: Individuals have the right to a fair and impartial hearing before a neutral decision-maker. This means that judges, juries, and other decision-makers must be unbiased and free from any conflicts of interest.
- Right to counsel: Individuals have the right to be represented by an attorney in legal proceedings. If they cannot afford an attorney, the government may be required to provide one.
- Right to present evidence: Individuals have the right to present evidence and witnesses in their defense. They also have the right to cross-examine witnesses presented by the opposing party.
- Right to an appeal: Individuals have the right to appeal a decision made in a legal proceeding. This allows for a higher court to review the decision and ensure that the legal process was followed correctly.
- Right to due process of law: Individuals have the right to be treated fairly and justly in all legal proceedings. This includes the right to a fair trial, the right to be free from arbitrary or capricious government action, and the right to have their case decided based on the facts and the law.
These rights are essential to protecting individual rights and ensuring that legal proceedings are fair and just. They are often enshrined in national and international legal frameworks, such as the U.S. Constitution, the Universal Declaration of Human Rights, and the European Convention on Human Rights.
Federal Due Process Precedents
There are numerous precedential federal cases in the United States that have established and interpreted the constitutional protections of due process. Here are some of the most significant cases:
- Palko v. Connecticut (1937): In this case, the Supreme Court held that certain rights protected by the Bill of Rights, such as the right to a fair trial, are so fundamental to due process that they are incorporated by the Due Process Clause of the Fourteenth Amendment and are binding on the states.
Justice Benjamin Cardozo, writing for the majority, explained that some Constitutional protections that would apply against the federal government would not be incorporated to apply against the states unless the guarantee was “implicit in the concept of ordered liberty”. Incorporation of the Bill of Rights was selective, not a general rule, and in this case the Court declined to incorporate the protection from double jeopardy against the states, even though the protection would most certainly have been upheld against the federal government.
In an opinion by Justice Benjamin Cardozo, the Court held that the Due Process Clause protected only those rights that were “of the very essence of a scheme of ordered liberty” and that the court should therefore incorporate the Bill of Rights onto the states gradually, as justiciable violations arose, based on whether the infringed right met that test.
Applying the subjective case-by-case approach (known as selective incorporation), the Court upheld Palko’s conviction on the basis that the double jeopardy appeal was not “essential to a fundamental scheme of ordered liberty.”
- Rochin v. California (1952): In this case, the Supreme Court held that the use of physical brutality to obtain evidence violates due process because it shocks the conscience.
Rochin v. California, 342 U.S. 165 (1952), was a case decided by the Supreme Court of the United States that added behavior that “shocks the conscience” into tests of what violates due process clause of the 14th Amendment. This balancing test is often criticized as having subsequently been used in a particularly subjective manner.
On July 1, 1949, three Los Angeles County deputy sheriffs entered the Rochins’ residence without a search warrant and forcibly entered Rochin’s room on the second floor.
Upon entering the room, the deputies noticed two capsules on the night stand. Rochin immediately swallowed the capsules after Deputy Jack Jones asked him, “Whose stuff is this?” Jones then grabbed and squeezed Rochin by the neck, as well as shoving his fingers in Rochin’s mouth as he attempted to eject the capsules. The deputies, unable to obtain the capsules, handcuffed and took Rochin to Angeles Emergency Hospital where he was strapped to an operating table and had a tube forcibly placed in his mouth and into his stomach and given an emetic solution, whereupon he vomited the capsules into a bucket. The deputies then retrieved the capsules and tested them to be morphine. Subsequently, this was submitted as evidence, and Rochin was found guilty of violating California Health and Safety Code § 11500 as having an unlawful possession of morphine.
Rochin appealed his case on the basis that his rights, guaranteed to him by Amendments V and XIV of the United States Constitution and by Article I(1)(13)(19) of the California Constitution rendered the evidence inadmissible, and that the forced stomach pumping was unconstitutionally compelled self-incrimination. The appeals court denied his defense arguing that the evidence was admissible, despite the egregious behavior of the officers, as it was “competent evidence,” and the courts are not allowed to question the means in which it was obtained. As the court wrote, “illegally obtained evidence is admissible on a criminal charge in this state.”
The court voted in an 8-0 decision (Minton abstained) to overturn the decision. Justice Frankfurter wrote the majority opinion which struck down the prior conviction, arguing that the brutality of the means used to extract the evidence from Rochin “shocks the conscience,” and it clearly violates the due process of law as guaranteed by the Fourteenth Amendment. Frankfurter also admitted the term “due process” was nebulous but asserted that it existed to preserve the fairness and integrity of the system and that society expects judges to act impartially and to take into account precedence and social context.
The court quoted from the decision of the California Supreme Court, in which two justices dissented, saying,
… a conviction which rests upon evidence of incriminating objects obtained from the body of the accused by physical abuse is as invalid as a conviction which rests upon a verbal confession extracted from him by such abuse. … Had the evidence forced from defendant’s lips consisted of an oral confession that he illegally possessed a drug …, he would have the protection of the rule of law which excludes coerced confessions from evidence. But because the evidence forced from his lips consisted of real objects, the People of this state are permitted to base a conviction upon it. [We] find no valid ground of distinction between a verbal confession extracted by physical abuse and a confession wrested from defendant’s body by physical abuse.
- Gideon v. Wainwright (1963): In this case, the Supreme Court held that the Sixth Amendment right to counsel is a fundamental right that is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states.
Gideon v. Wainwright, 372 U.S. 335 (1963), was a landmark U.S. Supreme Court decision in which the Court ruled that the Sixth Amendment of the U.S. Constitution requires U.S. states to provide attorneys to criminal defendants who are unable to afford their own. The case extended the right to counsel, which had been found under the Fifth and Sixth Amendments to impose requirements on the federal government, by imposing those requirements upon the states as well.
Gideon appeared in court alone as he was too poor to afford counsel, whereupon the following conversation took place:
The COURT: Mr. Gideon, I am sorry, but I cannot appoint counsel to represent you in this case. Under the laws of the State of Florida, the only time the court can appoint counsel to represent a defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint counsel to defend you in this case.
GIDEON: The United States Supreme Court says I am entitled to be represented by counsel.
The trial court declined to appoint counsel for Gideon. As a result, he was forced to act as his own counsel and conduct his own defense in court, emphasizing his innocence in the case. At the conclusion of the trial, the jury returned a guilty verdict. The court sentenced Gideon to serve five years in the state prison.
The Supreme Court decision specifically cited its previous ruling in Powell v. Alabama (1932). Whether the decision in Powell v. Alabama applied to non-capital cases had sparked heated debate. Betts v. Brady (1942) had earlier held that, unless certain circumstances were present, such as illiteracy or low intelligence of the defendant, or an especially complicated case, there was no need for a court-appointed attorney in state court criminal proceedings. Betts had thus provided the selective application of the Sixth Amendment right to counsel to the states, depending on the circumstances, as the Sixth Amendment had only been held binding in federal cases. Gideon overruled Betts, holding that the assistance of counsel, if desired by a defendant who could not afford to hire counsel, was a fundamental right under the United States Constitution, binding on the states, and essential for a fair trial and due process of law regardless of the circumstances of the case. The Court explained its rationale in these words:
[L]awyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant’s need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
- Miranda v. Arizona (1966): In this case, the Supreme Court held that individuals must be informed of their rights, including the right to remain silent and the right to an attorney, before being interrogated in police custody.
Miranda v. Arizona, 384 U.S. 436 (1966), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Fifth Amendment to the U.S. Constitution restricts prosecutors from using a person’s statements made in response to interrogation in police custody as evidence at their trial unless they can show that the person was informed of the right to consult with an attorney before and during questioning, and of the right against self-incrimination before police questioning, and that the defendant not only understood these rights but also voluntarily waived them.
Miranda was viewed by many as a radical change in American criminal law, since the Fifth Amendment was traditionally understood only to protect Americans against formal types of compulsion to confess, such as threats of contempt of court. It has had a significant impact on law enforcement in the United States, by making what became known as the Miranda warning part of routine police procedure to ensure that suspects were informed of their rights. The concept of “Miranda warnings” quickly caught on across American law enforcement agencies, who came to call the practice “Mirandizing”.
Pursuant to the U.S. Supreme Court decision Berghuis v. Thompkins (2010), criminal suspects who are aware of their right to silence and to an attorney but choose not to “unambiguously” invoke them, may find any subsequent voluntary statements treated as an implied waiver of their rights, and used as or as part of evidence. At least one scholar has argued that Thompkins “fully undermined” Miranda.
Five justices formed the majority and joined an opinion written by Chief Justice Earl Warren. The Court ruled that because of the coercive nature of the custodial interrogation by police (Warren cited several police training manuals that had not been provided in the arguments), no confession could be admissible under the Fifth Amendment self-incrimination clause and Sixth Amendment right to an attorney unless a suspect has been made aware of his rights and the suspect has then waived them:
The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.
Thus, Miranda’s conviction was overturned. The Court also made clear what must happen if a suspect chooses to exercise their rights:
If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease … If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.
Justice Brennan’s comments on the Miranda decision.
Warren also pointed to the existing procedures of the Federal Bureau of Investigation (FBI), which required informing a suspect of his right to remain silent and his right to counsel, provided free of charge if the suspect was unable to pay. If the suspect requested counsel, “the interview is terminated.” Warren included the FBI’s four-page brief in his opinion.
However, the dissenting justices accused the majority of overreacting to the problem of coercive interrogations, and anticipated a drastic effect. They believed that, once warned, suspects would always demand attorneys, and deny the police the ability to gain confessions
- Mathews v. Eldridge (1976): In this case, the Supreme Court established a three-part balancing test to determine what process is due when the government seeks to deprive an individual of a property or liberty interest.
Mathews v. Eldridge, 424 U.S. 319 (1976), is a case in which the United States Supreme Court held that individuals have a statutorily granted property right in Social Security benefits, and the termination of such benefits implicates due process but does not require a pre-termination hearing. The case is significant in the development of American administrative law.
Determining the constitutional sufficiency of administrative procedures, prior to the initial termination of benefits and pending review, requires consideration of three factors:
- The interests of the individual in retaining their property and the injury threatened by the official action;
- The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
- The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication.
The Court determined that Social Security benefits are a statutorily-created property right and so implicate due process.
However, after balancing the three factors, the Court ruled that the administrative procedures in place were constitutional and held that termination of Social Security benefits does not require a pre-termination hearing. See Matthews v. Eldridge, 424 U.S. 319, 347-49 (1976).
- Batson v. Kentucky (1986): In this case, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from using peremptory challenges to exclude jurors based on race.
Batson v. Kentucky, 476 U.S. 79 (1986), was a landmark decision of the United States Supreme Court ruling that a prosecutor’s use of a peremptory challenge in a criminal case—the dismissal of jurors without stating a valid cause for doing so—may not be used to exclude jurors based solely on their race. The Court ruled that this practice violated the Equal Protection Clause of the Fourteenth Amendment. The case gave rise to the term Batson challenge, an objection to a peremptory challenge based on the standard established by the Supreme Court’s decision in this case. Subsequent jurisprudence has resulted in the extension of Batson to civil cases (Edmonson v. Leesville Concrete Company) and cases where jurors are excluded on the basis of sex (J.E.B. v. Alabama ex rel. T.B.).
James Kirkland Batson was an African American man convicted of burglary and receipt of stolen goods in a Louisville, Kentucky circuit court by a jury composed entirely of white jurors. The key part of his appeal was based on the jury selection, or voir dire, phase of the trial. During this phase potential jurors are examined by the Court, the prosecution, and the defense, to determine their competence, willingness, and suitability to hear, deliberate and decide a case put to them to render a verdict. During voir dire the judge can dismiss jurors, and both the prosecution and the defense have a limited number of peremptory challenges, which are accepted on their face, as the right of the party making the challenge and which they use to excuse any juror for any reason which the particular side believes will help their case.
In this case, the judge dismissed several potential jurors for various causes. The defense peremptorily challenged nine potential jurors and the prosecutor, Joe Gutmann, peremptorily challenged six, including all four black persons, and a jury composed only of white persons was selected. The defense counsel moved to discharge the whole jury on the ground that the prosecutor’s removal of black people from the jury pool violated petitioner’s rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community, and under the Fourteenth Amendment to equal protection of the laws. Without expressly ruling on petitioner’s request for a hearing, the trial judge denied the motion, and the jury ultimately convicted the defendant.
In a 7–2 decision authored by Justice Lewis Powell, the Supreme Court ruled in Batson’s favor. The court overruled Swain v. Alabama by lowering the burden of proof that a defendant must meet to make a prima facie case of purposeful discrimination. In Swain, the Court had recognized that a “State’s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause”, but that the defendant had the burden of proving a systematic striking of black jurors throughout the county, that is, that the peremptory challenge system as a whole was being perverted. In Batson the court ruled that the defendant could make a prima facie case for purposeful racial discrimination in jury selection by relying on the record only in his own case. The Court explained:
The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire [jury pool] members of the defendant’s race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.
The Court also held that:
- A State denies a black defendant equal protection when it puts him on trial before a jury from which members of his race have been purposely excluded
- A defendant has no right to a petit jury composed in whole or in part of persons of his own race. However, the Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors
- The peremptory challenge occupies an important position in trial procedures
Justice Marshall, concurring with the majority, called the decision “historic” but added: “The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.”
- Hamdi v. Rumsfeld (2004): In this case, the Supreme Court held that the government may detain individuals as enemy combatants, but they must be given a meaningful opportunity to challenge their detention in court.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004), is a United States Supreme Court case in which the Court recognized the power of the U.S. government to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens must have the rights of due process, and the ability to challenge their enemy combatant status before an impartial authority.
It reversed the dismissal by a lower court of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen who was being detained indefinitely as an illegal enemy combatant after being captured in Afghanistan in 2001. Following the court’s decision, on October 9, 2004, the U.S. government released Hamdi without charge and deported him to Saudi Arabia, where his family lived and he had grown up, on the condition that he renounce his U.S. citizenship and commit to travel prohibitions and other conditions.
According to his father, Hamdi went to Afghanistan in the late summer of 2001 as a relief worker. He was then captured less than two months after his arrival by the Afghan Northern Alliance. They turned him over to U.S. military authorities during the U.S. invasion. He was classified as an enemy combatant by the U.S. armed forces and detained in connection with ongoing hostilities.
After his capture in 2001, Hamdi was detained and interrogated in Afghanistan. In January 2002, the Americans transferred Hamdi to Guantanamo Bay. In April 2002, when officials discovered that he held U.S. (as well as Saudi) citizenship, they transferred him to a Naval brig in Norfolk, Virginia and finally to the Naval Consolidated Brig in Charleston, South Carolina. In June 2002, Hamdi’s father, Esam Fouad Hamdi, filed a habeas corpus petition in the United States District Court for the Eastern District of Virginia to challenge his detention.
The Bush administration claimed that because Hamdi was caught in arms against the U.S., he could be properly detained as an enemy combatant, without any oversight of presidential decision making, and without access to an attorney or the court system. The administration argued that this power was constitutional and necessary to effectively fight the War on Terror, declared by the Congress of the United States in the Authorization for Use of Military Force passed after the September 11 terrorist attacks. The government used its detention authority to ensure that terrorists were no longer a threat while active combat operations continued and to ensure suspects could be fully interrogated.
Justice O’Connor wrote a plurality opinion representing the Court’s judgment, which was joined by Chief Justice Rehnquist and Justices Breyer and Kennedy. O’Connor wrote that although Congress had expressly authorized the detention of enemy combatants in its Authorization for Use of Military Force (AUMF) passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his enemy combatant status.
Justice O’Connor used the three-part test of Mathews v. Eldridge to limit the due process to be received. This required notice of the charges and an opportunity to be heard, though because of the burden of ongoing military conflict upon the executive, normal procedural protections, such as placing the burden of proof on the government or the ban on hearsay, need not apply. O’Connor suggested the Department of Defense create fact-finding tribunals similar to the AR 190-8 to determine whether a detainee merited continued detention as an enemy combatant.
In response, the United States Department of Defense created Combatant Status Review Tribunals, modeling them after the AR 190-8. O’Connor did not write at length on Hamdi’s right to an attorney, because by the time the Court rendered its decision, Hamdi had been granted access to one. But O’Connor wrote that Hamdi “unquestionably has the right to access to counsel in connection with the proceedings on remand.” The plurality held that judges need not be involved in reviewing these cases, rather only that an “impartial decision maker” was required. Justice O’Connor also limited the reach of the Court’s conclusion regarding the executive authority to detain enemy combatants:
For purposes of this case, the enemy combatant that [the government] is seeking to detain is an individual who, it alleges, was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there. We therefore answer only the narrow question before us, whether the detention of citizens falling within that definition is authorized.
The plurality asserted that the Judiciary must not defer to the executive with respect to detentions. Instead the constitution empowers the judiciary to act as a check on executive power in this realm. Justice O’Connor wrote:
[W]e necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. ‘Youngstown Sheet & Tube Co. v. Sawyer,’ 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. … Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. … it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.
Marbury v. Madison (1803)
“It is explicitly the province and duty of the Judicial Department to say what the law is.”
This decision gave the Court the ability to strike down laws on the grounds that they are unconstitutional (a power called judicial review).
McCulloch v. Maryland (1819)
The Court held that Congress had implied powers to establish a national bank under the “necessary and proper” clause of the U.S. Constitution. The Court also determined that United States laws trump state laws and consequently, a state could not tax the national bank.
The McCulloch decision established two important principles for constitutional law that continue today: implied powers and federal supremacy.
Gibbons v. Ogden (1824)
The Court held that it is the role of the federal government to regulate commerce and that state governments cannot develop their own commerce-regulating laws. Further, the Court created a wide definition for “commerce,” reasoning that the term encompassed more than just selling and buying. In this case, the Court determined that regulating water navigation was in fact an act that regulated commerce.
Dred Scott v. Sandford (1857)
Does Congress had the constitutional power to prohibit slavery in free territories and did the Constitution gave African Americans the right to sue in federal court.
Congress could not prohibit slavery in territories, and African Americans also had no right to sue in federal court. In reaching these answers, the Court, interpreting the Constitution as it existed before the Civil War Amendments (Constitutional Amendments 13, 14, and 15) abolished slavery, concluded that people of African descent had none of the rights of citizens. The Court further reasoned that slaves were “property” and therefore could not be taken from their owners without due process.
The Dred Scott case became a central issue in the debate surrounding the expansion of slavery and further fueled the flames leading to the Civil War.
Schenck v. United States (1919)
Is certain speech, including sending antiwar pamphlets to drafted men, made in wartime and deemed in violation of the Espionage Act, protected by the First Amendment?
No. Although the defendant would have been able to state his views during ordinary times, the Court held that in certain circumstances, like this case the nation being at war, justify such limits on the First Amendment.
The Schenck decision is best known for creating the “clear and present danger” test meaning that speech could be restricted if it presented a clear and present danger. The decision was also the first to explain the metaphor of falsely yelling “Fire!” in a crowded theater. Schenck was later modified by Brandenburg v. Ohio, which said that speech could be restricted if it would provoke an “imminent lawless action.”
Brown v. Board of Education (1954)
Do racially segregated public schools violate the Equal Protection Clause?
A unanimous Court held that state laws requiring or allowing racially segregated schools violate the Equal Protection Clause of the Fourteenth Amendment. The Court famously stated “separate educational facilities are inherently unequal.”
Tinker v. Des Moines (1969)
The Supreme Court held that students do not “shed their constitutional rights to freedom of speech…at the schoolhouse gate.” Consequently, the Court found that the students’ speech could only be prohibited if it actually disrupted the educational process.
Regents of the University of California v. Bakke(1978)
The Court held that universities may use race as part of an admissions process so long as “fixed quotas” are not used. The decision upheld affirmative action programs. In 2003, such academic affirmative action programs were again directly challenged in Gratz v. Bollinger and Grutter v. Bollinger. In these cases, the Court clarified that admission programs that include race as a factor can pass constitutional muster so long as the policy is narrowly tailored and does not create an automatic preference based on race.
Laws That Provide and Protect Due Process
Laws protecting due process vary depending on the country and legal system, but some of the most well-known legal protections of due process include:
- The U.S. Constitution: The U.S. Constitution’s Fifth and Fourteenth Amendments provide protections for due process of law. The Fifth Amendment guarantees that no person shall be deprived of “life, liberty, or property, without due process of law,” while the Fourteenth Amendment extends this protection to the states.
- The European Convention on Human Rights: The European Convention on Human Rights, which is binding on 47 European countries, provides protections for due process. Article 6 of the Convention guarantees the right to a fair trial and the right to a hearing before an independent and impartial tribunal.
- The Universal Declaration of Human Rights: The Universal Declaration of Human Rights, which was adopted by the United Nations General Assembly in 1948, recognizes the importance of due process. Article 10 guarantees the right to a fair and public hearing by an independent and impartial tribunal.
- International Covenant on Civil and Political Rights: The International Covenant on Civil and Political Rights, which is binding on 173 countries, provides protections for due process. Article 14 guarantees the right to a fair and public hearing by a competent, independent, and impartial tribunal.
- National Laws: Many countries have national laws that protect due process. For example, in the United States, the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure provide guidelines for legal proceedings to ensure due process.
These laws and legal frameworks are designed to protect individuals from arbitrary and unjust government actions and to ensure that legal proceedings are fair and just. However, the effectiveness of these laws depends on how they are enforced and implemented in practice.