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Due Process of Law: A Brief History
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.
"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 .
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 .
- GenresLaw
128 pages, Paperback
First published January 15, 2003
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Displaying 1 - 4 of 4 reviews
October 9, 2018
Just the family reading and keeping up on our rights. Seemed the month to do it. Dissapointing none of my children had studied it at all in school. So Mom came thru. Recommend to parents.
June 5, 2009
Talk about brief! This book demonstrates the making of substantive due process, that elusive concept consistently mistaught in law schools. Orth starts with the Magna Carta to demonstrate the beginning of procedural due process. He then explains how Lochner added onto that concept to branch out into an economic substantive due process. From there, the jump to non-economic substantive due process was only a matter of time.
July 24, 2021
This was a great read before starting law school. Helped me understand the basics of this topic and where SCOTUS stand today on the topic.
December 27, 2025
Solid overview. Chapters in logical and coherent order: really appreciated some of the insights, particularly on Coke and Blackstone/English common law
Displaying 1 - 4 of 4 reviews