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According to “revolutionary” (2010, p. 1), the Due process can be traced back to the English document Magna Carta of 1215. The 39th article read; "No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land" (‘revolutionary’ p. 1). With several revisions, Magna Carta by 1354 read as follows: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law" (“Revolutionary”2010, p. 1). The 1354 edition for the very first time brought on board the phrase, “due process of law” in the document.
“Revolutionary” (2010, p. 1) explains that the basic idea presented by the clauses above was that the government can only use written laws to punish a person. This sets a limitation on the government against acting on their own wishes without paying due regard to the law. In the United States context, the terms “due process” and “law of the land” were used interchangeably in the thirteen colonies. These terms according to the revolutionary referred to the fact that,
“Officials could only take away people's rights, goods, lands, life or freedom according to written and established laws. In short, the accused must be granted what is "due" him, meaning his right to have a fair legal process and not an arbitrary one created on the spot by the whims of the officials involved.” (“Revolutionary,” p. 1).
By the time the Fifth Amendment was added to the constitution, the principles of the Due process clause were widely accepted. The Fifth Amendment applies only to the Federal government. The Bill of Rights restricted on the actions of the Federal government but the states were free to make laws concerning issues of freedom of speech, freedom of religion and the due process (“Revolutionary” 2010, p. 1).
The 14th Amendment which took place after the Civil War saw the inclusion of the Due process clause in the constitution. This was specifically targeted at the states. The 14th Amendment led to the incorporation of the provisions in the Bill of Rights against the states. This has made it possible for the Judiciary to have an upper hand as pertains to the issues of decision making. The Due process clause has been basically drawn into two clauses: procedural due process and substantive due process (“Revolutionary” 2010, p. 1).
The procedural due process refers to the legal proceedings process. This process has to be carried out in accordance to written laws that are clear and fair. These proceedings include, “arrests, interrogating suspects, informing defendants of the charges against them, jury selection, etc” (“Revolutionary” 2010, p. 1). Time factor is brought in by procedural clause: if a person is to be part of a legal proceeding then he /she, “must be informed of the time, date and place that the meeting is to take place” (“Revolutionary” 2010, p. 1).
The substantive due process refers to the actual content of the law. The substance of the law should not violate the constitution otherwise the law would have violated the substantive due procedure. There are rights which though not listed in the constitution are still protected by the constitution. This was the purpose of the ninth Amendment. The right to protect these unlisted rights rests upon the Supreme Court and the state legislatures. The government passes laws but if the Supreme Court believes that such laws (by using substantive due process) are fair or somehow violates someone’s rights, then such a law is thrown out. Through this method the Supreme Court is able to check the laws and ensure that they do not violet the constitution.