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
