RIGHT TO DUE PROCESS

The phrase due process embodies society's basic notions of legal fairness. A first reading of the due process clauses of the Fifth and Fourteenth Amendments, which prohibit government from taking a person's "life, liberty or property without due process of law," suggests a limitation that only relates to procedures.  In fact many due process cases do involve the question of fair procedures or procedural due process. However, question of legal fairness may be related not only to procedures, but also to legislation that unfairly affects people. As a result, courts in the U.S. have interpreted the language of these Amendments as a limitation on substantive powers of legislatures to pass laws affecting various aspects of life. When applying what is called substantive due process, courts look at whether a law or government action unreasonably infringes on a fundamental liberty.

In a case from 1833, the Supreme Court  of the U.S. decided that the Fifth Amendment was not directly binding on state governments. As a result of that case, neither the Supreme Court nor the federal court in general exercised much control over the substance of state laws or over the processes by which states administered their laws during America's early years. This situation changed dramatically with the passage of the Civil War Amendments (13, 14, and 15), which were designed to prevent discrimination by states against blacks freed from slavery as a result of that war.

The Fourteenth Amendment's due process clause was almost identical to the Fifth Amendment's clause. But the Fourteenth Amendment was specific in limiting the actions of the state governments. Courts have interpreted these two clauses identically: the Fifth Amendment now limits the power of the federal government and the Fourteenth Amendment limits the power of state (and local) governments.

Procedural Due Process

Many of the modern due process cases deal with what is called procedural due process (fair process, procedures). Due process procedures do not guarantee that the result of government action will be to a citizen's liking. However, fair procedures do help prevent arbitrary, unreasonable decisions. Due process requirements vary depending on the situation. At a minimum, due process means that a citizen who will be affected by a government decision must be given notice of what government plans to do and have a chance to comment on the action.

Government takes many actions that may deprive people of life, liberty, or property. In each case, some form of due process is required. For example, a state might fire someone from a government job, send defendant to prison, revoke a prisoner's parole, or cut someone's social security payments or other welfare benefits. Due process does not prohibit these actions, but it does require that certain procedures be followed before any action is taken.

If a person has a right to due process, the next question is this: What process is due? Due process is a flexible concept. The procedures required in specific situations depend on several factors: seriousness of the harm that might be done to the citizen; the risk of making an error without the procedures; and the cost to the government, in time and money, in carrying out the procedures. According to past decisions of the Supreme Court, the primary reason for establishing procedural safeguards - once a life, liberty, or property interest is affected by government action - is to prevent inaccurate or unjustified decisions.

In addition to notice and an opportunity to be heard, due process may include a hearing before an impartial person, representation by an attorney, calling witnesses on one's behalf, cross-examination of witnesses, a written decision with reasons based on evidence introduced, a transcript of the proceeding, and an opportunity to appeal the decision.

If you believe that the government has not followed proper procedures, the best thing to do is to first consult an attorney. With the attorney's advice and assistance, you can file a complaint directly with the government agency. You may also be able to go to court and seek an order that the government follow due process in dealing with you.

Substantive Due Process

Substantive due process refers to the Supreme Court's examination of the reasons why the government passed a law or otherwise acted in a manner denying a citizen or a group of citizens life, liberty, or property (regardless of the procedure the law provides). In some cases, such as when a law infringes upon a citizen's First Amendment rights, right to privacy, right to vote, or makes a racial or sexual classification, the Supreme Court requires the government to have an extremely important or "compelling" reason for the law. The Court will "strictly scrutinize" the government's reasons and, in all likelihood, will strike the law down. In other cases, such as when the government enacts taxation or zoning laws, the personal rights involved are not as fundamental, and the Court will uphold the law as long as the government's motives are not arbitrary or irrational.

Historic Supreme Court Decisions