BY THOMAS REED POWELL OF THE LAW SCHOOL OF COLUMBIA UNIVERSITY
(From the American Political Science Review, August, 1907, Vol. I, pp. 583 ff.)
The Federal Constitution provides that no person shall be deprived of life, liberty or property without due process of law, and vests in the Federal Supreme Court the ultimate power to determine what is due process. The legality of any interference with person or property may always be questioned in judicial proceedings, and therefore depends, in the last analysis, upon its conformity to a rule of law laid down by the courts.
The most usual method of disturbing the individual in the enjoyment of his personal and property rights is by judicial proceedings, and no person without authority of some branch of the government can constitutionally imprison him or permanently appropriate his property by any other means. Conceivably, the doctrine might have obtained that the government and its agents acting in official capacities must also have recourse to the courts in any undertaking affecting private rights. But "due process" has been interpreted as meaning process in conformity with certain fundamental principles, rather than any specific and required mode of procedure. The courts have held that, in certain instances, the government may interfere with private rights through the action of its administrative agents, and that such agents may be vested with the power of final and conclusive determination of the facts on which their action is based.
There are, of course, two limitations upon this administrative power, one legislative, the other judicial, or, more correctly, constitutional. The Constitution itself vests in the executive branch of the government, power to act in several matters which necessarily have an indirect effect upon private rights, ( Luther vs. Borden, 7 Howard 1), but the authority to determine finally questions directly affecting such rights must depend upon express legislative enactment.
Further, it remains for the judiciary to determine whether such enactment conforms to the requirement of the Constitution.
No thoroughly satisfying and all inclusive definition of due process has ever been evolved. We can best understand the real value of the constitutional provision by ascertaining what deeds may be done in its name.