Due Process Clause Essay

1368 words - 5 pages

2Due Process1Due ProcessDue Process Clause:Types and advantages of it.Gerta AgalliuCriminal Justice 201Professor CaseySeptember 21, 2014According to Black's Law Dictionary: Due Process of Law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved." (Black's Law Dictionary, 1999) Due process is a very complex subject to try to explain but in a few words simply means that it holds the government subservient to the land of the law and that people have the protection against a chance deprivation of life, liberty or property. In this essay I will write about the origins of due process, the different types of due process and the advantages of having that kind of law in our constitution.Due process is originated from the Magna Carta (1215), which was the Great Chapter of English liberties where the nobles limited the King's authority. John, King of England promised: "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…except by the lawful judgment of his equals or by the law of the land". The phrase "law of the land" then transformed over time to what is now known as "due process of law."(Sargentich, 2009).The phrase the "law of the land" was also part of Massachutes statute in 1692. In addition, the f ifth and f ourteenth amendments to the United States Constitution each contain a Clause. The Fifth Amendment states "no person shall be held to answer for a capital, or other wise infamous crime, unless on a presentment or indictment of a Grand Jury…nor be deprived of life, liberty, or property, without due process of law." (The Constitution, 1878) The Fourteenth amendment also indicates that "…nor shall any State deprive any person of life, liberty, or property, without due process of law…" Therefore, the right of due process has centuries of existence and is officially guaranteed by the US Constitution.The due process clause requires the government to recognize substantive and procedural rights of people and to apply the law equally to everyone. Substantive due process refers to the constitutionality of laws. SDP is a principle, which allows federal courts to protect certain fundamental rights from government interference and its conceptual basis is to make the rights of the people clear. Today, the Court focuses on three types of substantive due process which are: 1) the rights enumerated in and derived from the first eight amendments in the Bill of Rights, 2) the right to participate in the political process, and 3) the right of "discrete and insular minorities". On the other hand, procedural due process refers to the...

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