The History of Due Process
"The history of American freedom is, in no small measure, the history of procedure."1
The Fifth and Fourteenth Amendments to the United States Constitution bar the government from depriving any person of life, liberty or property without due process of law.2 These Due Process Clauses afford both substantive and procedural protections. As substantive limits on governmental action, the Due Process Clauses bar the government from interfering with certain interests that are so basic, personal or fundamental that they may not be regulated by government absent a compelling interest, regardless of the procedural protections afforded (Reno v. Flores, 1993).3 Among the interests protected are reproductive freedom (Planned Parenthood v. Casey, 1992; Roe v. Wade, 1973) and the right to raise one's children autonomously (Troxel v. Granville, 2000; Pierce v. Society of Sisters, 1925).
Our concern in this volume, of course, is with the procedural protections afforded by the Due Process Clauses. The terseness of the phrase "due process of law" belies an enormously powerful check on governmental power: before the government can deprive a person of a protected interest, it must provide her with notice and an opportunity to be heard, among other procedural protections. Our primary objective is to explore the content, scope and significance of these protections as well as their limits. But before we begin, let us first understand the historical context in which these clauses of the Constitution were adopted and the early understanding of the phrase "due process of law."
EARLY ENGLISH LAW
Although the words "due process of law" are not found in the Magna Carta, that charter is commonly viewed as the historical antecedent of the Due Process Clauses. Adopted as a personal treaty between King John and his rebellious barons in 1215, the Magna Carta protected not only the nobility but also the