Written by Ray Brescia
One of the fundamental ideas the founders aimed to promote—that the government must act responsibly and in conformity with the rule of law—is being put to the test as the United States approaches the 250th anniversary of the Declaration of Independence in 2026.
In their discussions preceding the declaration, the founders expressed more than simply their grave worries that King George III’s administration was infringing on the rights of the colonists, which they outlined in the statement. Through the idea of due process, they would also codify these ideals in the U.S. Constitution more than ten years later.
What were the likely intentions of the framers? For legal experts such as me, that is no longer just an academic question. In the United States, the definition and implementation of due process has become a contentious topic, frequently in relation to the deportation policies of the Trump administration.
Regarding the so-called due process clause of the Constitution, the U.S. Supreme Court has rendered multiple decisions in deportation-related issues during the last few months.
The court appeared to make it quite clear in the April 2025 decision of Trump v. J.G.G. that deportations could not occur without fair process. But in D.H.S. v. D.V.D., a case decided more recently, the Supreme Court stopped a lower court from granting due process rights to a group of men the government intended to deport to South Sudan, where they would be subject to torture and possibly death.
In addition to making it difficult to determine when due process is applicable, these seemingly incongruous decisions likely leave many people wondering what exactly the word “due process of law” means and how it operates.
The origins of due process
Medieval England is where the American idea of due process originated, and the U.S. Supreme Court is credited with modernizing it. By doing this, the significance of due process can be clarified. It also challenges the court’s most recent decision on the matter.
The 13th-century Magna Carta, a formal written pact between King John of England and the rebel nobility that essentially established legal restrictions on authority, is where the ideas of due process and the rule of law first appeared.
No Freeman shall be taken, imprisoned in any other way, or deprived of his Freehold, Liberties, or Free Customs; nor shall we condemn him, nor will we pass upon him, except by the law of the land or by the lawful judgment of his peers, according to a significant clause in Magna Carta.
By formally imposing restrictions on a previously unchecked regent, this agreement set English law on a path that would put the rule of law above the whims of the monarch.
More than a century later, Parliament passed the English law of 1354, which stated that no man, regardless of his status or condition, could be removed from land or a tenement, taken into custody, imprisoned, disinherited, or executed without first being subjected to due process of law.
As British law developed throughout time, these ideas influenced the burgeoning spirit of revolt in the American Colonies.
Thomas Paine’s booklet Common Sense, which was published in January 1776, will serve to inspire and prepare a large number of colonists for the impending revolutionary struggle. The effort helped the colonists focus their ire on more drastic change—independence and a nation run according to the law—instead of seeking to make the monarch treat them better.
According to Paine, the colonists did not seek a monarchy: “As long as we accept monarchy, the law is king in America.” Since the King is the law in absolute governments, the law should be the King in free nations and no other should exist.
Defining due process
In order to safeguard their citizens from government overreach, many of the original 13 states drafted their own constitutions after gaining independence. For example, Virginia’s Declaration of Rights from 1776 stated that the government was bound by the law of the land.
However, the federal government could not act in a way that denied the people their life, liberty, or property without due process of law until the country ratified the Bill of Rights, the first ten amendments to the Constitution, in 1791. The 14th Amendment would extend these similar safeguards to all state and federal government actions following the Civil War.
The Supreme Court’s decision in the 1970 case of Goldberg v. Kelly, in which welfare claimants contested their denial of benefits without a hearing, provides the most up-to-date and thorough explanation of what due process demands.
In that instance, the court decided that when governments try to take away someone’s life, liberty, or property, the person being targeted must be fairly informed of the accusations or claims made against them that would support that loss, have a chance to refute those accusations, and have the right to have their defenses taken into consideration by an unbiased arbiter.
In 1976, the Supreme Court acknowledged that due process protections might fluctuate depending on a variety of factors in various contexts. These include the case’s stakes, the possibility that the government may err in a specific circumstances, and the advantages and disadvantages of implementing particular procedural rules in a particular circumstance.
For instance, stricter protocols are needed when someone’s life is literally at stake. However, the elements of fair notice, an opportunity to be heard, and having one’s case decided by an unbiased adjudicator must be significant regardless of how significant the interest that is subject to due process is—whether it be one’s life, one’s home, one’s liberty, or something else.
Ray Brescia is Albany Law School’s Associate Dean for Research and Intellectual Life.
