Due Process of Law: A Brief History

No person's life, liberty, or property may be taken without due process of law. What exactly that means has been one of the most frequently asked questions in American constitutional history. Today, the answer is usually given in two parts: what procedures the government must follow and--in exceptional cases--what the government cannot do even if it follows the proper procedures. The procedural aspect of this answer has been far less controversial than substantive due process, which at one time limited government regulation of business and today forbids the states from outlawing abortions.

Due process of law, as a phrase and as a concept, was already old at the time it was adopted by American constitution-writers, both state and federal. Mindful of the English background and of constitutional developments in the several states, Orth in a succinct and readable narrative traces the history of due process, from its origins in medieval England to its applications in the latest cases.

Departing from the usual approach to American constitutional law, Orth places the history of due process in the larger context of the common law. To a degree not always appreciated today, constitutional law advances in the same case-by-case manner as other legal rules. In that light, Orth concentrates on the general maxims or paradigms that guided the judges in their decisions of specific cases. Uncovering the links between one case and another, Orth describes how a commitment to fair procedures made way for an emphasis on the protection of property rights, which in turn led to a heightened sensitivity to individual rights in general.

This unconventional history of the concept of due process heightens the reader's understanding of an important and vexed question of Anglo-American law and constitutionalism. Tracing the evolution of substantive due process through paradigmatic and exemplary cases, Orth explains in understandable terms the sources of controversial judicial rulings like Roe v. Wade.

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All Customer Reviews
Average Customer Review:
4 of 6 people found the following review helpful:

A Brief Guide to Due Process Throught the Ages, 2004-11-14
I was assigned this book my Junior year at Washington University (Ranked 12th in the U.S) in my advanced government course. It was one of three, if memory serves, and I was to write a 20 page paper on its assertions and overall thesis. The paper was one-fifth the size of the book (perhaps more so because my paper was not double-spaced), but I found the book clear and wonderful. I still refer to this book now that I am looking toward law school. It is short, well-written and useful to the student who finds himself studying something so complex. I fully endorse it.


9 of 12 people found the following review helpful:

Who Would Read This Book?, 2003-07-12
In 102 pages of double-spaced text, Professor Orth outlines the development of due process law from its roots in Magna Carta to Supreme Court cases such as Lochner v. New York and Roe v. Wade. Although Orth refers to political developments such as the rise of parliament and Roosevelt's court-packing plan, for the most part he stays focused on the logic (or "paradigms") underlying due process law, suggesting (p. 102) that the law has unfolded as a "continuous series" of cases building on earlier conceptions of due process. Others might attribute the notorious twists and turns in this area to political shifts in the courts and society at large. In any event, it's hard to know who would benefit from or enjoy Orth's book. It's too sketchy to be of use to lawyers or law students and too devoid of political history of judicial biography to be of interest to laymen. On the other hand, it's clearly-written -- and very short.

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