Due Process of War

71 Pages Posted: 10 Jan 2019

See all articles by Nathan S. Chapman

Nathan S. Chapman

University of Georgia School of Law

Date Written: January 10, 2019


The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war that accords with this history and suggests useful principles for the “war on terrorism.”

First, all deprivations of rights during war were subject to the law of the land. During a state of war, rights were determined by the law of war, treaty, and statute. The President had no constitutional authority to deprive persons, including enemies, of rights contrary to that law. Second, many deprivations of rights during war were also subject to the Due Process Clause. The courts in England and the United States provided a number of judicial remedies to enforce the law of the land. Americans understood these remedies to be a requirement of due process. Importantly, those courts provided such remedies for many deprivations during war. English and American courts considered habeas petitions for enemy noncombatants; considered trespass suits brought against military officers by enemy noncombatants for deprivations of liberty and property; and reviewed the application of military law by courts martial. When such deprivations were within the jurisdiction of a federal court, they were subject to due process of law. Third, many deprivations of rights during war, though subject to the law of the land, were not subject to due process. The deprivation of rights of enemy combatants on a battlefield and the deprivations of rights of civilians by an officer exercising statutory authority to enforce martial law were subject to the law of the land, but not to due process.

Keywords: Due Process Clause, Fifth Amendment, constitutional law, war, War Powers Exception, martial law, law of the land, Magna Carta, law of nations, habeas corpus, Third Amendment, Ware v. Hylton, Alien Acts of 1798, terrorism

JEL Classification: K19

Suggested Citation

Chapman, Nathan S., Due Process of War (January 10, 2019). Notre Dame Law Review, Vol. 94, 2018, University of Georgia School of Law Legal Studies Research Paper No. 2019-03, Dean Rusk International Center Research Paper No. 2019-03, Available at SSRN: https://ssrn.com/abstract=3313474

Nathan S. Chapman (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States
(706) 542-5235 (Phone)

HOME PAGE: http://www.law.uga.edu/profile/nathan-s-chapman

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