Due process is one of the most enduring phrases in the American constitutional tradition. It appears in the Fifth Amendment, binding the federal government, and in the Fourteenth Amendment, extending the guarantee to the states.
North Carolina’s Constitution also secures due process through Article I, Section 19, which provides that no person shall be deprived of life, liberty, or property except by the “law of the land.”
Far from being ornamental language, due process reflects a working system of legal discipline that reaches from Magna Carta through North Carolina’s founding conventions into the daily practice of its courts.
If you face criminal charges in North Carolina, understanding due process is more than academic. It is the foundation of your legal rights. The Powers Law Firm helps clients navigate the system with experience, preparation, and respect for the constitutional principles that protect against government abuses. For a confidential consultation, TEXT call 704-342-4357
What is Due Process?
At its most basic, due process describes fairness in the exercise of public power. The concept is generally divided into two areas: procedural due process and substantive due process.
Procedural due process governs how the government acts. It requires notice, an opportunity to be heard, and a neutral decision maker. Such requirements prevent decisions based on surprise, secrecy, or bias. Procedural due process is visible every day in traffic court, administrative hearings, and jury trials.
Substantive due process speaks to what the government may do. It restricts government from invading certain fundamental rights, even if proper procedures are followed. Substantive due process has been invoked to protect property rights, personal autonomy, and family integrity.
While its boundaries between procedural and substantive due process may be debated, the core idea is that liberty is not exhausted by procedure alone. Indeed, some governmental intrusions are per se impermissible regardless of the processes employed.
Historical Roots of Due Process
The story begins with Magna Carta in 1215. Its famous clause required judgment “by the law of the land,” a limitation on the King’s ability to punish without lawful authority. Over time, English jurists transformed that phrase into legal doctrines within our court system today.
John Locke gave the principle philosophical weight in his Second Treatise of Government. He described liberty as protection from the arbitrary will of another. For Locke, the end (the purpose) of law was not to restrain freedom but to increase individual freedoms from the government, ensuring that life, liberty, and property could not be taken by personal whim.
John Adams echoed the theme in Article XXX of the Massachusetts Constitution, writing that government should be one “of laws and not of men.”
Thomas Jefferson warned in 1788 that “the natural progress of things is for liberty to yield, and government to gain ground.”
These voices together reflect a distrust of unchecked power and government intrusion, with a strong preference for transparent rules that citizens can read, argue, and test without favor.
Due Process in North Carolina’s Constitutional Tradition
North Carolina’s commitment to due process predates the federal Bill of Rights.
In 1776, the Halifax Resolves authorized delegates to pursue independence, emphasizing consent over decree. At Hillsborough in 1788, delegates refused to ratify the proposed Constitution without a declaration of rights.
Only after amendments were promised did the Fayetteville Convention ratify in 1789, making North Carolina the twelfth state.
The sequence highlights North Carolina’s dogged insistence that the governed (the citizenry) be protected from government intrusion by way of explicit, written guarantees.
The fear was that if not specifically set forth, the government would take any and all power it could.
Indeed, that’s also one reason our form of government reserves any remaining powers and protections in favor of individual liberties, and makes clear are not intended to cede to the government.
That posture is reinforced by Bayard v. Singleton (1787), the seminal establishing American jurisprudential precedent for judicial review of legislation. North Carolina judges refused to enforce a statute that violated the state constitution’s protections for vested property rights.
Decided before Marbury v. Madison, the case demonstrates early judicial willingness to invalidate legislation that crossed constitutional boundaries.
Today, Article I, Section 19 of the North Carolina Constitution continues that ideology, declaring that no person shall be deprived of life, liberty, or property but by the law of the land. Section 18 promises open courts and remedy without denial or delay, while Section 35 counsels frequent recurrence to fundamental principles to preserve liberty.
Procedural Due Process in Practice
Procedural due process remains a central aspect of the daily court practice. In criminal law, traffic stops require reasonable suspicion. An arrest for DUI cannot be made without probable cause.
Similarly, searches persons, property or their houses and effect, require probable cause or a recognized exception.
Charges must allege defined elements, and the State bears the burden of proof beyond a reasonable doubt. Exculpatory evidence must be disclosed to the defense, and expert testimony in North Carolina must meet reliability standards before reaching a jury.
Supreme Court cases require the same vigor.
In Gideon v. Wainwright (1963), the Court held that the right to counsel applies to state prosecutions, recognizing that fairness is impossible without legal assistance.
In Goldberg v. Kelly (1970), due process was applied to administrative benefits, requiring hearings before termination of welfare support. These decisions illustrate how due process extends across contexts, from criminal charges to civil entitlements.
Substantive Due Process and Fundamental Rights
Substantive due process addresses the content of government action. It recognizes that liberty includes more than procedure. It includes rights so fundamental that they cannot be abridged without extraordinary justification.
Economic liberty appeared in early substantive due process cases such as Lochner v. New York (1905), where the Court invalidated limits on bakers’ working hours.
What does getting “Indicted” mean?
Later, personal autonomy became the focal point. Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) recognized reproductive choices within liberty’s protection, while Obergefell v. Hodges (2015) extended the right to marry to same-sex couples.
In North Carolina, the courts have likewise checked governmental intrusion against constitutional promises. Property rights, family law, and education all present recurring contexts where substantive due process operates.
Due Process Is Not Self-Protecting
Rights remain fragile if courts lack the resources or commitment to enforce them.
Our court system in North Carolina must have the time, funding, and personnel to decide cases on their merits.
Appeals must remain open to correct error. Records must be transparent so that appellate courts and the public can evaluate reasoning.
North Carolina’s Constitution makes that clear.
Article I, Section 19’s “law of the land” clause serves as a significant and important protection against government overreach.
Article I, Section 18 guarantees of justice without favor, denial, or delay, which today is measured by determining the adequacy of legislative funding to properly address court calendars and the technologies employed (North Carolina Odyssey computer system “portal”) for the timely administration of justice.
Section 35’s call for recurrence to fundamental principles invites continual evaluation of whether government action remains consistent with law and liberty.
The Living Architecture of Due Process
Due process is not a static rule.
It is one of the oldest guarantees of liberty to the modern machinery of government. Its force lies not in untested theorety but in discipline and daily application. The insistence that every act of power be justified, recorded, and reviewable is central to jurisprudence.
The moment that stops happening, law becomes discretion and liberty becomes permission.
In North Carolina, the constitutional promise that no one shall be deprived of life, liberty, or property but by the “law of the land” still matters in our court system, whether criminal charges, family law cases, car accident cases and wrongful death claims, property disputes, et al.
From Bayard v. Singleton to the latest appellate decisions challenging a warrantless search, the same principles applies. Government cannot take what it cannot lawfully justify and explain.
That is one reason why due process serves as an indispensable aspect of self-government and protection against governmental abuses against individual liberties.
It protects the guilty and the innocent alike, not because the conduct is necessarily equal, but because power must always be checked and answerable to the citizenry.
Every notice, hearing, and appeal reflects discipline in motion.
The courts of North Carolina, like those of the nation, depend on vigilance.
Legislators must fund them, no excuses accepted.
Lawyers must defend clients against governmental abuses. Judges interpret laws, as written.
For those navigating our legal system, whether accused of a crime or someone subject to adverse possession of property by the government, the rules are intended to restrain government and protect individual rights.
If you face a case that tests those boundaries, you do not have to stand alone. Call of TEXT the Powers Law Firm at 704-342-4357 now to schedule a confidential consultation.