What is Due Process?

For two short and simple words, defining what “due process” means in a legal context is a little tricky. The phrase originally appears in the Constitution, based on language in the Declaration of Independence, and courts have been refining its meaning ever since.

So, what is due process and what does it mean for you? Here’s a look.

The Basis of Due Process

The Fifth Amendment to the Constitution reads: “No person shall be … deprived of life, liberty, or property, without due process of law.” Additionally, the 14th Amendment states that “No State shall … deprive any person of life, liberty, or property, without due process of law.” Based on those guarantees, certain rights and protections apply to both civil and criminal legal proceedings and to both state and federal laws.

Due Process Rights

The phrase “due process of law” refers to a constitutional guarantee that:

• You will receive notice of any legal proceedings taken against you
• Those legal proceedings will be fair
• You will have an opportunity to make your case before the government makes a decision regarding your life, liberty, or property.

Also, there is a related guarantee that the law applied in those proceedings will not be unreasonable or apply differently to different people.

It is important to note that the Due Process Clause only applies to government action (both state and federal) and other entities that are essentially performing government functions. Due process guarantees generally don’t apply to private businesses or people, although other laws might.

Procedural Due Process

Due process rights apply in two ways: There is procedural due process and substantive due process.

Procedural due process refers to the policies and methods the government employs before depriving someone of their life, liberty, or property. These procedures are designed to limit the exercise of power by the state and federal governments in criminal and civil matters. Often, the amount of “process” required will vary depending on whether a person is being deprived of life, liberty, or property.

For instance, before the government can deprive you of your liberty (sentencing you to prison, for example), it must generally follow strict procedural rules regarding a criminal trial, like advising you of the charges you are facing, allowing you to cross-examine witnesses, guaranteeing your right to an attorney, and requiring the state to prove any charges beyond a reasonable doubt.

Substantive Due Process

Substantive due process, on the other hand, refers to the creation and definition of certain rights, and the level of scrutiny courts should apply to laws that affect those rights. Substantive due process deals with the scope of fundamental rights like freedom of speech and privacy and the protection of those rights against government intrusion.

For example, courts will apply a “strict scrutiny” test to state or federal laws that restrict free speech, forcing the government to prove the law is necessary to achieve a compelling state interest, and that the law has been narrowly tailored to address that interest. In short, courts are very skeptical of any law that restricts your fundamental rights.