Editing Due process (section)

=== English law and American law diverge ===

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". That view usually held in regards to what was required by existing law, rather than what was intrinsically required by due process itself. As the [[United States Supreme Court]] has explained, a due process requirement in Britain was not "essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used".<ref name="caselaw1">''[[Hurtado v. California]]'', {{ussc|110|516|1884}}</ref>

Ultimately, the scattered references to "due process of law" in [[English law]] did not limit the power of the government; in the words of American law professor [[John V. Orth]], "the great phrases failed to retain their vitality."<ref name="Orth1">{{cite book |last1=Orth |first1=John V. |title=Due Process of Law: A Brief History |date=2003 |publisher=University Press of Kansas |location=Lawrence, KS |isbn=9780700612420 |pages=30–31 |url=https://books.google.com/books?id=1yOQAAAAMAAJ&q=great+phrases+vitality |access-date=8 October 2020}}</ref> Orth points out that this is generally attributed to the rise of the doctrine of [[parliamentary supremacy]] in the United Kingdom, which was accompanied by hostility towards [[judicial review]] as an undemocratic foreign invention.<ref>Orth, 28–30.</ref>

Scholars have occasionally interpreted Lord Coke's ruling in ''[[Dr. Bonham's Case]]'' as implying the possibility of judicial review, but by the 1870s, [[John Campbell, 1st Baron Campbell|Lord Campbell]] was dismissing judicial review as "a foolish doctrine alleged to have been laid down extra-judicially in Dr. Bonham's Case..., a conundrum [that] ought to have been laughed at".<ref name="Orth2">{{cite book |last1=Orth |first1=John V. |title=Due Process of Law: A Brief History |date=2003 |publisher=University Press of Kansas |location=Lawrence, KS |isbn=9780700612420 |page=29 |url=https://books.google.com/books?id=1yOQAAAAMAAJ&q=conundrum |access-date=8 October 2020}}</ref> Lacking the power of judicial review, English courts possessed no means by which to declare government statutes or actions invalid as a violation of due process.<ref name="Ilbert">{{cite book |last1=Ilbert |first1=Courtenay |author-link1=Courtenay Ilbert |title=The Mechanics of Law Making |date=1914 |publisher=Columbia University Press |location=New York |pages=3–9 |isbn=9781584770442 |edition=2000 reprint |url=https://books.google.com/books?id=FVXiIXjsSGQC&pg=PA3 |access-date=8 October 2020}}</ref> In contrast, American legislators and executive branch officers possessed virtually no means by which to overrule judicial invalidation of statutes or actions as due process violations, with the sole exception of proposing a constitutional amendment, which are rarely successful.<ref>The U.S. Supreme Court recognized that it is nearly impossible for the legislative branch to overrule the Court's constitutional interpretations in ''[[Washington v. Glucksberg]]'', 521 U.S. 702, 720 (1997): "By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field."</ref> As a consequence, English law and American law diverged.  Unlike their English counterparts, American judges became increasingly assertive about enforcing due process of law.  In turn, the legislative and executive branches learned how to avoid such confrontations in the first place, by tailoring statutes and executive actions to the constitutional requirements of due process as elaborated upon by the judiciary.<ref name="Ilbert" />

In 1977, an English political science professor explained the present situation in England for the benefit of American lawyers:
<blockquote>An American constitutional lawyer might well be surprised by the elusiveness of references to the term 'due process of law' in the general body of English legal writing.... Today one finds no space devoted to due process in Halsbury's ''[[Halsbury's Laws of England|Laws of England]]'', in Stephen's ''[[Commentaries on the Laws of England|Commentaries]]'', or Anson's ''Law and Custom of the Constitution.'' The phrase rates no entry in such works as Stroud's ''[[Stroud's Judicial Dictionary|Judicial Dictionary]]'' or Wharton's ''Law Lexicon.''<ref name="Marshall, 69" /></blockquote>

Two similar concepts in contemporary English law 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. V. Dicey]] and others.<ref name="Marshall, 69" /> However, neither concept lines up perfectly with the American conception of due process, which presently contains many implied rights not found in the ancient or modern concepts of due process in England.<ref name="Marshall, 69–70" />