The Little Word "Due"


Andrew T. Hyman


The meaning of the Due Process Clause is investigated, with special emphasis on the little word "due." The author concludes that the text and structure of the Constitution --- as well as the intentions of the framers --- strongly support the view of the late Justice Hugo Black regarding the meaning of this Clause in the Fifth and Fourteenth Amendments. In the Constitution, due process means process due according to the law of the land, and a statute is part of the law of the land if it does not violate or undermine any other provision of the Constitution. Thus, the doctrines of substantive due process and procedural due process are both incorrect, to the extent that they substitute the views of the judiciary for the views of legislators.


Constitutional Law

Date of this Version

February 2006