What Is Due Process?

PDF-file by Jason Kuznicki

What Is Due Process? PDF ebook download In this month's Cato Unbound we ask what the Constitution means when it promises us that no one will be "deprived of life, liberty, or property, without due process of law." This phrase — found in the Fifth Amendment and made binding on the states in the Fourteenth Amendment — is usually understood as a guarantee of an orderly, impartial, and regular trial procedure, and no one doubts that these things are components of "due process of law."

Our lead essayist, however, would take things further. Timothy Sandefur of the Pacific Legal Foundation asks why we value an orderly, impartial, regular trial procedure in the first place, and he finds that this is but one component, albeit a necessary one, of lawful rule. He makes the case that the due process clause offers us more than just a set of legal rituals. It is also a guarantee of non-arbitrary action by government, a promise that the government will act in the service of the public good, not for mere private interest or arbitrary whim.

This step takes us into some deeply normative territory, full of difficult value judgments and risk of error. We've invited three other eminent legal minds to discuss the issue: Lawrence Rosenthal of Chapman University, Gary Lawson of Boston University, and Ryan Williams of the University of Pennsylvania.

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