Due Process of War

Nathan S. Chapman*

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.

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© 2018 Nathan S. Chapman. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor, University of Georgia School of Law. My thanks to many friends and colleagues who have talked with me about these ideas and read prior drafts: Diane Amann, Kent Barnett, William Baude, Randy Beck, Samuel Bray, Jud Campbell, Harlan Cohen, Bill Dodge, Richard Ekins, John Harrison, Michael McConnell, Zach Price, Usha Rodrigues, and Andrew Woods. Thanks also to those who provided comments at workshops at the Oxford Programme for the Foundations of Law & Constitutional Government, Stanford Constitutional Law Center, University of Kentucky College of Law, University of Georgia School of Law, and Wake Forest University School of Law.