Principally associated with one of the fundamental guarantees of the
United States Constitution, due process derives from early English
common law and constitutional history. The first concrete expression of the due process idea embraced by Anglo-American law appeared in the 39th article of
Magna Carta (1215) in the royal promise that “No freeman shall be taken or (and) imprisoned or disseised or exiled or in any way destroyed . . . except by the legal judgment of his peers or (and) by the law of the land.” In subsequent English statutes, the references to “the legal judgment of his peers” and “laws of the land” are treated as substantially synonymous with due process of law. Drafters of the U.S. federal Constitution adopted the due process phraseology in the
Fifth Amendment, ratified in 1791, which provides that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” Because this amendment was held inapplicable to state actions that might violate an individual’s constitutional rights, it was not until the ratification of the
Fourteenth Amendment in 1868 that the several states became subject to a federally enforceable due process restraint on their legislative and procedural activities