Due Process Can Not Be Legislated

"[T]he meaning [due process] does not change with the ebb and flow of economic events." - Justice Sutherland, in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 402 (1936).

"It is manifest it was not left to the legislative power to exact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of government, and cannot be so construed as to leave congress free to make any process ‘due process of law,’ by its mere will." Murray's Lessee v. Hoboken Imp. Co., 18 How. (59 U.S.) 272, 276 (1855); French v. Barber Asphalt, 181 U.S. 324, 330 (1900).

"An act of the legislature is not necessarily the ‘law of the land.’ A state cannot make anything ‘due process of law’ which, by its own legislation, it declares to be such." Burdick v. People, 36 N.E. 948, 949, 149 Ill. 600 (1894).

"Due process of law does not mean merely according to the will of the Legislature, or the will of some judicial or quasi-judicial body upon whom it may confer authority. It means according to the law of the land, including the Constitution with its guaranties and the legislative enactments and rules duly made by its authority, so far as they are consistent with constitutional limitations." Ekern v. McGovern, 154 Wis. 157, 142 N.W. 595, 620 (1913), cases cited.

"’The law of the land,’ as used in the constitution, has long had an interpretation, which is well understood and practically adhered to. It does not mean an Act of the Legislature; if such was the true interpretation, this branch of the government could at any time take away life, liberty, property and privilege, without a trial by jury." Saco v. Wentworth, 37 Maine 165, 171 (1852).

"The individual may stand upon his constitutional rights as a citizen." "His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution." Hale v. Henkel, 201 U.S. 43, 74 (1905).

"[T]he provision [due process clause] is designed to exclude oppression and arbitrary power from every branch of government." Dupuy v. Tedora, 15 So.2d 886, 890, 204 La. 560 (1943).

"The Legislative has no right to absolute, arbitrary power over the lives and fortunes of the people. The Legislative cannot justly assume to itself a power to rule by extempore arbitrary decrees…" Samuel Adams, The Rights of the Colonists (1772).

"Daniel Webster, in the Dartmouth College Case, stated: ‘By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgement only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land.’ - It is thus entirely correct in assuming that a legislative enactment is not necessarily the law of the land." - Judge Thomas M. Cooley, A Treatise on Constitutional Limitations, 5th Ed. Little, Brown & Co.: Boston, 1883, Sec.353-54, p.432.

See also: Definition of Due Process of Law