Due Process of Law
A Brief History
John V. Orth
Many rights that Americans cherish today go unmentioned in the U.S. Constitution. Where do these freedoms come from? John V. Orth answers that question in this unique and gem-like history of due process.
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.
“A succinct and elegantly reasoned study. . . . Orth ably contextualizes the contest and introduces the issues in clear and intelligent fashion.”
“An accessible overview of the concept of due process of law as it has evolved over the centuries. Lawyers, historians, constitutional scholars, and observers of the Supreme Court will find this book a most interesting read.”
—BooklistSee all reviews...
“This book is a gem. An engaging and masterful presentation that clarifies our understanding of a critical idea.”
—Appellate Practice Journal
“This insightful little book clearly summarizes centuries of doctrinal development, particularly in the United States. It will serve as a useful volume on any constitutional historian’s reference shelf and might be appropriate for advanced courses in constitutional and legal history.”
“A wonderfully lucid overview of due process as a limitation on the powers of government, summing up a half-millennium of legal development in clear yet rigorously accurate prose. A valuable work for all students of constitutional law.”
—William M. Wiecek, author of Liberty Under Law: The Supreme Court in American Life
“Lucid, accessible, accurate, and marvelously well told, Orth’s book deserves a prominent place on every educated lawyers bookshelf.”
—William Van Alstyne, author of The First Amendment in the Twentieth Century
“Orth’s book is a gem. It has something for every reader, from legal historians to constitutional scholars to those simply interested in the Supreme Court’s decisions.”
—Suzanna Sherry, coauthor of Desperately Seeking Certainty: The Misguided Quest for Constitutional FoundationsSee fewer reviews...
"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.