Procedural Due Process: Constitutional Rights And Requirements

The US Constitution requires federal and state governments to follow certain procedures to protect the essential interests of all people within the country. Procedural due process refers to the constitutional requirement that when the government acts in a manner that denies a person of life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by an unbiased decision-maker. The specific procedures guaranteed by the US Constitution may depend on the nature of the subject matter and individual circumstances. The Due Process Clause, found in both the Fifth and Fourteenth Amendments, protects individuals when the government deprives them of life, liberty, or property, and limits the government's arbitrary exercise of its powers.

Explore related products

Defending Due Process: Why Fairness Matters in a Polarized World

$23.3 $29.95

Due Process: Child Support Tanf Grants & How To Win In Court

$10.24

Due Process: A defendant’s guide through the criminal injustice system

$17.5

Due Process of Law: A Brief History

$24.99 $29.99

The Due Process of Law

$16.19 $49.99

Federal Rules of Civil Procedure; 2025 Edition: With Statutory Supplement (Quick Desk Reference)

$19.5

Procedural due process and substantive due process

The US Constitution requires that federal and state governments follow certain procedures to protect the essential interests of all people within the United States. The Fifth and Fourteenth Amendments of the US Constitution guarantee due process to all persons located within the country. The Amendments, also known as the Due Process Clauses, protect individuals when the government deprives them of life, liberty, or property, and limit the government's arbitrary exercise of its powers.

The US Constitution requires two types of due process: procedural due process and substantive due process. Procedural due process refers to the constitutional requirement that when the government acts in such a manner that denies a person of life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by a neutral decision-maker. The government must also demonstrate that there is an articulated standard of conduct for their actions with sufficient justification. The requirements, called "fundamental fairness," protect people from unjust or undue deprivation of interest.

The specific procedures guaranteed by the US Constitution may depend on the nature of the subject matter of the interest in question as well as each individual’s circumstances. In civil contexts, the courts utilize a balancing test between private interests, the government’s public interest, and the possibility of the government procedure’s erroneous deprivation of private interest in evaluating government conduct. On the other hand, in criminal procedures, the court looks to whether the procedure the government has adopted is offensive to the notion of fundamental fairness for the due process analysis.

Substantive due process, on the other hand, is related to rights that individuals have from government interference. It demarcates the line between acts that courts deem subject to government regulation or legislation and those they consider beyond the reach of governmental interference. It is the theory that the government cannot interfere with certain matters, regardless of what rules it follows. Those matters are called "fundamental rights." No amount of procedural due process can authorize government interference with fundamental rights.

Much substantive due process litigation involves legal challenges to the validity of unenumerated rights and seeks particular outcomes instead of merely contesting procedures and their effects. In successful cases, the Supreme Court recognizes a constitutionally based liberty and considers laws that seek to limit that liberty to be unenforceable or limited in scope.

Fundamental fairness

Procedural due process refers to the constitutional requirement that when the government acts in a manner that denies a person of life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by a neutral decision-maker. These requirements, called "fundamental fairness," protect people from unjust or undue deprivation of interest.

The specific procedures guaranteed by the US Constitution may depend on the nature of the subject matter of the interest in question as well as each individual’s circumstances. For example, in civil contexts, the courts utilize a balancing test between private interests, the government’s public interest, and the possibility of the government procedure’s erroneous deprivation of private interest in evaluating government conduct. On the other hand, in criminal procedures, the court looks to whether the procedure the government has adopted is offensive to the notion of fundamental fairness for the due process analysis.

The Due Process Clause, found in the Fifth and Fourteenth Amendments, protects individuals when the government deprives them of life, liberty, or property, and limits the government’s arbitrary exercise of its powers. The requirements of due process are determined in part by an examination of the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and the early years of the United States.

The concept of fundamental fairness in procedural due process has evolved over time. For example, in the early decisions of the Supreme Court, necessary hearings could be postponed to follow provisional, even irreversible, government action, especially if only property rights were at stake. However, this presumption changed in 1970 with the decision in Goldberg v. Kelly, which found that before a state terminates a welfare recipient's benefits, the state must provide a full hearing before a hearing officer.

The determination of fundamental fairness in procedural due process is a complex and context-dependent inquiry, with no single answer that applies to all situations.

Requirements for due process

The requirements of due process are determined by examining the nature of the subject matter and the individual's circumstances. Due process is concerned with the procedures the government must follow in criminal and civil matters to protect the essential interests of people within the United States.

Procedural due process refers to the constitutional requirement that when the government acts in a manner that denies a person of life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by an unbiased decision-maker. The government must also demonstrate that there is a standard of conduct for their actions with sufficient justification.

The Fifth and Fourteenth Amendments of the US Constitution, also known as the Due Process Clauses, guarantee due process to all persons located within the United States. These amendments protect individuals when the government deprives them of life, liberty, or property, and limit the government's arbitrary exercise of its powers.

The requirements of due process are determined in part by examining the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and the early years of the United States. The specific procedures guaranteed by the US Constitution may depend on whether the government action concerns a civil or criminal proceeding. In civil contexts, the courts balance private interests, the government's public interest, and the possibility of the government procedure's erroneous deprivation of private interest. In criminal procedures, the court looks at whether the procedure the government has adopted goes against the notion of fundamental fairness.

Due process does not require a state to adopt an insanity test that turns on a defendant's ability to recognize that their crime was morally wrong. It also does not forbid a state from requiring that evidence of an incompetent person's wishes to withdraw life-sustaining treatment be proved by clear and convincing evidence.

Explore related products

Due Process (Sin & Redemption Book 3)

$4.99

Due Process Denied: The Detained - The Families - The Fallout

$18.99 $18.99

Due Process Denied: Detentions and Deportations in the United States (Framing 21st Century Social Issues)

$24.36 $49.99

Due Process of Law and the Divine Right of Dissent

$11.99 $11.99

Constructing Basic Liberties: A Defense of Substantive Due Process

$30 $30

Magna Carta and Due Process of Law: The Road to American Judicial Activism

$6.99

Due process in criminal and civil matters

Procedural due process is concerned with the procedures the government must follow in criminal and civil matters. The specific procedures guaranteed by the US Constitution may depend on the nature of the subject matter of the interest in question and each individual's circumstances. For example, in criminal procedures, the court looks at whether the procedure the government has adopted is offensive to the notion of fundamental fairness for the due process analysis. In civil contexts, the courts utilize a balancing test between private interests, the government's public interest, and the possibility of the government procedure's erroneous deprivation of private interest in evaluating government conduct.

The US Constitution requires two types of due process: procedural due process and substantive due process. Substantive due process is a principle allowing courts to protect certain fundamental rights from government interference, even if procedural protections are present or the rights are not specifically mentioned elsewhere in the US Constitution.

The Fifth and Fourteenth Amendments of the US Constitution guarantee due process to all persons located within the United States. The Amendments, also known as the Due Process Clauses, protect individuals when the government deprives them of life, liberty, or property, and limit the government's arbitrary exercise of its powers. The Sixth Amendment further guarantees rights of due process to criminal defendants, including the right to a speedy and fair trial with an impartial jury of one's peers, the right to an attorney, and the right to know what one is charged with and who has accused them.

Due process rules protect individuals against government or state actors and not usually from other individuals.

Due process and the Bill of Rights

Due process is a constitutional requirement that ensures that the government follows specific procedures when acting in a way that could deny a person their life, liberty, or property. This concept is enshrined in the Fifth and Fourteenth Amendments to the U.S. Constitution, known as the Due Process Clauses, which guarantee due process to all persons within the United States. The Fourteenth Amendment, in particular, ensures that state and federal obligations are the same when it comes to protecting these fundamental rights.

Procedural due process focuses on the steps that must be taken before someone is deprived of their rights. These steps typically include providing notice, an opportunity to be heard, and an unbiased decision-maker. Additionally, procedural due process may also grant individuals the right to present evidence, cross-examine witnesses, and be represented by counsel. The specific procedures guaranteed by the Constitution can vary depending on the nature of the case and the individual's circumstances.

The Bill of Rights, which includes the first ten amendments to the U.S. Constitution, provides explicit answers for criminal trials regarding due process. For example, the Fifth Amendment, on which Miranda rights are based, focuses on governmental coercion, ensuring that coercive police activity is considered a violation of the Due Process Clause. The Eighth Amendment's Excessive Fines Clause is also incorporated into the Fourteenth Amendment's Due Process Clause, impacting state-level regulations.

The Supreme Court has played a significant role in interpreting and applying due process. In the 1915 case of Bi-Metallic Investment Co. v. State Board of Equalization, the Court clarified that the Constitution does not require "due process" for establishing laws but rather when the state acts against individuals based on unique characteristics. The 1970 Goldberg v. Kelly case further expanded due process rights, requiring states to provide a full hearing before terminating welfare benefits. However, some argued that the Goldberg standards were too broad, leading to the Mathews v. Eldridge case, which defined a method for lawyers and courts to address due process questions.

Frequently asked questions