Street Law: A Course in Practical Law

Chapter 41: Due Process

Chapter Overviews

Generally, the phrase due process refers to the concept of legal fairness. The Fifth and Fourteenth Amendments each contain clauses guaranteeing an individual's right to due process. The Fifth Amendment prohibits the federal government from denying citizens due process, and the Fourteenth Amendment prevents state governments from denying citizens due process. Over the years, the due process clause of the Fourteenth Amendment has proven important in securing the rights of many groups and preventing discrimination. Courts have interpreted the Fifth and Fourteenth Amendments to provide two types of due process—substantive due process and procedural due process.

Substantive Due Process  Substantive due process protects every individual's fundamental liberties from government interference. This means that a government action or law must not affect a person's fundamental rights. In this way, the due process clause has been used to secure certain fundamental rights that are not spelled out in the Constitution. Opponents of this type of constitutional interpretation argue that these rights should not be read into the document by judges.

Procedural Due Process  Procedural due process protects individuals from government action by requiring fair procedures before the government acts. When the stakes are the highest for the individual (such as in a capital punishment case), the government must follow particularly extensive procedures (trials with rules of evidence, appeals, etc.) to protect against error. When less is at stake, the required process can be much more limited. Due process in this case may be simple notice and the opportunity to state your position before the government takes action.