The Due Process Clause is a legal principle that has its origins in the Natural Law philosophy which preceded American Independence. Stemming from the Founders’ desire to enshrine protections against tyranny into the Constitution, the due process clause can be traced to the Magna Carta, which stated “no free man shall by…imprisoned…except by the lawful judgment of his peers…” The principle of equality before the law has evolved since Alexander Hamilton argued vociferously for its inclusion at the Constitutional Convention, and remains a pillar of legal rights today.
Referenced in a variety of Amendments, from the Fifth Amendment’s right of due process in cases of Federal government prosecution (extended to State Governments in the 14th Amendment) to the entire set of Constitutional rights as declared in the document itself. In fact, early Supreme Court cases, dating back to the 19th century, to the modern theory of unenumerated rights “as a restraints on the legislative, as well as on the executive and judicial powers of the government…”
The history of the Court shows an evolution of the interpretation of due process, which today has been focused on procedural rights, civil liberties and protection of minorities, a narrowing of the more expansive “freedom of contract” rulings under the early 20th century court in the wake of Lochner V. New York . Rather, the modern “substantive” due process precedent which remains a point of contention in current cases related to the implicit “Right to Privacy” as established in Griswold V. Connecticut. Modern Jurists such as Justice Thomas have argued against the subjective nature of the clause, and, instead, focus on the role of precedent, rather than through the lens of moral interpretation.
