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What Does Due Process Mean?

Published on March 7, 2023
4 minute read
<a href='https://www.lawmatics.com/blog/author/sarah/'>Sarah Bottorff</a>
Written by Sarah Bottorff

Due process is not an unfamiliar term, but many may not fully understand its significance and the crucial role it plays in upholding justice and protecting individual rights.

In short, it is the legal requirement that a government go through with any legal proceedings fairly, as the United States constitution guarantees Americans the right to life, liberty, and property, without government interference.  When the government interferes, they must follow through with an adequate process.  When someone has been deprived of a fair process, particularly through the courts, this is a lack of due process.  It’s important to note that due process can only be violated by a government entity and every state has different laws. 

Due process as guaranteed under the U.S. constitution can be either substantive or procedural in nature. Let’s dive into what each of those means.

What is procedural due process?

As guaranteed in the 5th and 14th amendment, every American citizen has the right to adequate service of legal proceedings which does not take or limit their life, liberty, or property.  This means they must be given warning before the government may bring about any legal proceedings.  In the absence of due process, a citizen’s rights have been violated.

Goldberg vs Kelly 1970

A great example of a landmark appeal court case that clearly demonstrates procedural due process is Goldberg versus Kelly.   When the welfare benefits of New York citizens were suddenly terminated without prior service or a hearing, Kelly along with other New York welfare assisted residents sued the head of the welfare payment department. 

Because their benefits were cut without warning, they claimed the welfare department had violated procedural due process. And since their welfare benefits were claimed a property right, they appealed that they should have been given the right to proper warning and a hearing before their welfare termination.  In other words, they were deprived of due process.

What is substantive due process?

Substantive due process is the guarantee that citizens will continue to enjoy their fundamental rights and be fairly treated by the government.

The 14th amendment states that no law shall be arbitrary.  If the government passes a law that deprives a citizen's rights, it becomes a substantive due process issue.  A substantive due process is determined by asking two questions.  

  1. Did the government pass this legislation?  
  2. If so, does the legislation ban the previously held rights of citizens?  

If the answer is yes to both of these, the substantive due process must be examined through one of two ways: strict scrutiny or the rational basis test. We choose which standard of review to apply based upon the nature of the right.

1 Strict scrutiny

The bill of rights and the fourteenth amendment include fundamental rights which include rights such as:  

  • Freedom of speech
  • Freedom of religion
  • The right to have children
  • The right to marry
  • The right to travel within the United States
  • The right to equality
  • The right to assemble
  • The right to bear arms

If the legislation is depriving a citizen of a right which is considered a “fundamental” right then it must pass strict scrutiny.  In this case, it must be proven that the law is necessary to achieve a compelling government interest.  

Roe VS Wade 1973 

The historic Roe vs Wade case is a clear example of substantive due process.  The Court classified abortion as a "fundamental" right of privacy, which required courts to apply strict scrutiny. 

2 Rational basis test

A law that infringes upon any other kind of right which is not a fundamental right, like the right to go get a haircut, or the right to go to the dentist, we apply the rational basis test. 

The rational basis test is there to determine whether a particular law is rationally related enough to a constitutional issue like privacy or discrimination.

The idea is that citizens have a fundamental right to live freely without government interference.  In other words, if the government attempts to limit someone’s basic liberties, we must use the rational basis test to show an individual’s freedom is being taken away for a legitimate government purpose which serves a greater interest. 

The origins of due process

A Magna Carta issued in the early 1200’s by John of England promised  "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” 

This “law of the land” was then set in place which not only required the monarchy to obey, but also changed the way that they could change laws as they saw fit.  Later in 1354, a rendition of the Magna Carta was issued by Edward III of England substituting “the law of the land”  with “answer by due process of law” thus due process came to be.

Due process: here to protect our constitutional rights 

Due process is put in place to ensure that citizens' liberties are upheld.  Only can our liberties be stripped away if the government has a legitimate interest which is justified and necessary.  In other words, due process is here to uphold the constitution.

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Sarah Bottorff

Sarah is the Head of Growth at Lawmatics, the #1 attorney-client relationship management platform that provides law firms with client intake, CRM, and marketing automation. She has over 18 years of marketing and sales experience and has a proven track record of building brands and driving growth at companies like MyCase, Smokeball, CJ Affiliate, Johnson & Johnson, and FastSpring.
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