The term "due process" appears in the U.S. Constitution in the Fifth and Fourteenth Amendments, but it is not defined there. It is one of those fundamental legal concepts that arises from Anglo-American legal tradition, and we need to look to history for the meaning. The key word is "due," meaning fair or that to which one has a right, as in the phrase, "Give him his due." But historical precedent does not leave the definition of fairness entirely to some natural sense of justice or allow us to be satisfied that process is "due" if it is merely uniform and equally applied. Implicit in the concept is a minimum standard of protection of rights that might be achieved by different procedures, but is unlikely to be protected unless certain procedures are strictly enforced to some minimum degree.
Copyright © 2006 from the Encyclopedia of American Civil Liberties edited by Paul Finkelman. Reproduced by permission of Taylor and Francis Group, LLC, a division of Informa plc.
West, Ellis. "Due Process." Encyclopedia of American Civil Liberties. Vol. 1: A - F. New York: Taylor & Francis Group, LLC, 2006.