Procedural Due Process Essay

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Due process balances the power of law of the land and protects the individual person from it.

When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.

For example, a student who has committed an infraction of failure and refusal to wear the proper uniform at school must first be given written notice informing him that there is a school policy requiring students to wear school uniform and that the student has violated this school policy.

He will thereby be informed that there will be hearing to determine whether he indeed has violated the school policy.

The phrase due process of law first appeared in a statutory rendition of Magna Carta in 1354 during the reign of Edward III of England, as follows: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." In 1608, the English jurist Edward Coke wrote a treatise in which he discussed the meaning of Magna Carta.

Coke explained that no man shall be deprived but by legem terrae, the law of the land, "that is, by the common law, statute law, or custom of England.... 29, no man ought to be taken or imprisoned, but by the law of the land. 3, there the words lex terrae, which are used in Mag. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority; and the law of Parliament is as much a law as any, nay, if there be any superiority this is a superior law.However, in filing a case for violation of due process the Supreme Court has declared that the student must prove that dismissal from school has deprived him of either a “liberty” or “property interest.(Board of Curators of the University of Missouri v.School administrators are likewise required to hold hearings after notice is served to the student and his parents.This is usually an informal process where the students with their parents are asked to explain whether there is any truth to the violation of school policy.This constitutional guarantee is embodied in the Fifth Amendment which states that “No person shall be…deprived of life, liberty and property without due process of law.” This is also emphasized in the Fourteenth Amendment which states thus, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Two Purposes of Due Process Rights of Students The protection guaranteed under the due process clause extends to the realm of the educational institutions, specifically in favor of students (V Lane Rawlins, 2005, p.1).This constitutional guarantee as applied in educational institution serves two distinct purposes.Due process has also been frequently interpreted as limiting laws and legal proceedings (see substantive due process) so that judges, instead of legislators, may define and guarantee fundamental fairness, justice, and liberty. Analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions, the interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically. However, neither concept lines up perfectly with the American theory of due process, which, as explained below, presently contains many implied rights not found in either ancient or modern concepts of due process in England.The term is not used in contemporary English law, but two similar concepts are natural justice, which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions, and the British constitutional concept of the rule of law as articulated by A. Due process developed from clause 39 of Magna Carta in England.Although the Queen's Bench held that the House of Commons had not infringed or overturned due process, John Paty was ultimately freed by Queen Anne when she prorogued Parliament.Throughout centuries of British history, many laws and treatises asserted various requirements as being part of "due process" or included in the "law of the land".


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