Due Process Clause

The due process clause is an important element of the United States Constitution with implications for the execution of both civil and criminal law. In this article, we’ll define the term “due process clause” and its two types. 

Key Takeaways

• The due process clause refers to the Fourteenth Amendment to the Constitution which states that U.S. states cannot deprive any citizen of life, liberty, or property without due process of the law
• Due process is also referenced in the Fifth Amendment 
• There are two types of due process: procedural and substantive
• Procedural due process addresses which legal procedures are required to be followed
• Substantive due process evaluates whether a law is constitutional and can be applied by states

What Is the Due Process Clause?

The due process clause is the Fourteenth Amendment to the Constitution, ratified in 1868, which says that there is a legal obligation of all states that no one shall be "deprived of life, liberty or property without due process of law." The same thing is written relevant to the federal government in the Fifth Amendment. The due process clause ensures that all levels of the American government must operate within the law and provide fair procedures. It applies to both civil and criminal law. 

Types of Due Process

There are two categories of due process: procedural due process and substantive due process. In short, procedural due process is how the law is carried out and substantive due process determines whether a law violates constitutional protections or not. 

Procedural Due Process

Procedural due process is based on the principles of “fundamental fairness,” addressing which legal procedures are required to be followed in state proceedings. This relates to issues such as:

• Notice
• Opportunity for hearing, confrontation, and cross-examination
• Discovery
• Basis of decision
• Availability of counsel 

According to procedural due process, if the federal government acts in a way that denies a citizen a life, liberty, or property interest, the citizen must be given notice, the chance to be heard, and a decision by a neutral third party (judge or jury). 

There is no definitive list of processes required for due process. However, there is a list written by Judge Henry Friendly of procedures that might be claimed in a due process argument. In order of perceived importance, these include:

• An unbiased tribunal.
• Notice of the proposed action and the grounds asserted for it.
• Opportunity to present reasons why the proposed action should not be taken.
• The right to present evidence, including the right to call witnesses.
• The right to know opposing evidence.
• The right to cross-examine adverse witnesses.
• A decision based exclusively on the evidence presented.
• Opportunity to be represented by counsel.
• Requirement that the tribunal prepare a record of the evidence presented.
• Requirement that the tribunal prepare written findings of fact and reasons for its decision.

Substantive Due Process

Substantive due process is a principle that allows courts to protect fundamental rights from governmental interference. It is used to evaluate whether a law can be applied by states at all, regardless of the procedure followed. It usually deals with areas such as liberty of contract or privacy.

In practice, substantive due process has had greater political weight than procedural due process because large portions of a state legislature’s substantive jurisdiction can be restricted by it. Courts have taken an assertive approach to upholding due process, resulting in the executive and legislative branches of the government repeatedly adjusting laws and statutes.