Due process is in the 14th Amendment in the Constitution and it guarantees due process to be observed in legal matters in the United States. The Due Process Amendment solidifies all rights given in the Bill of Rights and makes sure they are protected in every state in the United States. The primary rights in which the Due Process Amendment protects are known as the "Rights of the Accused" and are the 4th, 5th, 6th, 7th, and 8th amendments in the Bill of Rights:
- 4th Amendment: Illegal searches and seizures.
- 5th Amendment: Right to a jury, prohibits double jeopardy, protects against self-incrimination, protects against government encroachment of "life, liberty, and property."
- 6th Amendment: Right to a public trial, right to an attorney, right to an impartial jury, right to confront witnesses.
- 7th Amendment: Right to a jury in civil trial.
- 8th Amendment: No cruel and unusual punishments, no excessive fines or bail.
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There are three different types of due process found in the U.S. justice system. procedural due process, "Incorporation" of the Bill of Rights, and substantive due process. These are all mentioned in the Constitution but have been expanded on, interpreted, and adapted over time by various Supreme Court rulings for better understanding.
Procedural Due Process
The procedural due process definition is that if a citizen is to be deprived of "life, liberty, or property" by the government in a legal proceeding, that citizen must be given a chance to be heard or given notice in a court of law. The decision or ruling must be delivered by a neutral third party in the case. The following list is not an exhaustive list of what the government must do to give notice in a legal procedure, but outlines a procedural due process example:
- Citizen is given an opportunity to be represented by an attorney of the law.
- Right to produce evidence and witnesses.
- A fair and just hearing or tribunal must occur, with recordings of all evidence, testimony, and other legal records produced.
- A notice must be delivered to the citizen with a list of the legal matters being presented in the trial.
Incorporation of the Bill of Rights Against the States
The Bill of Rights at one point in U.S. history only applied to the federal government and states that honored the system. It has taken decades of lawsuits and court hearings to gradually "incorporate" the Bill of Rights against the states. The incorporation of the Bill of Rights Against the states means that the rights granted to individuals in the Bill of Rights must be honored, protected, and upheld in every state. Anytime an individual is deprived of a Constitutional right, whether it be in a legal matter or in conflict with state law, the federal courts can overturn the issue because of the Supremacy Clause and the Due Incorporation Clause of the Constitution. State law cannot infringe on the rights of citizens guaranteed in the Bill of Rights and state law is inferior to the Constitution.
The Incorporation Clause protects all the rights mentioned in the Bill of Rights. However, throughout history in various legal matters, it has mostly been associated with the First, Second, Fourth, and Eighth Amendments. For example, in the case McDonald v. Chicago 2010, an individual defended the right to own and possess a firearm. The 2nd Amendment was argued as a legal ground to defend the right to do so, but the case was appealed to the Supreme Court and the state ruling was overturned. With this ruling by the highest court in the land, the 2nd Amendment became nationally incorporated for all states and a state cannot deprive a law-abiding citizen of the 2nd Amendment right.
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Substantive Due Process
The substantive due process definition states that not only are individual rights protected during legal matters, but that protection is extended to other matters outside of the proceedings. Most substantive rights are now always listed or specifically mentioned because every case or hearing is different. They are significant in the rights of due process and they cannot be infringed. The 14th amendment states that the "privileges and immunities" of citizenship cannot be infringed on. For example, Supreme Court rulings have extended the substantive rights to marriage in numerous cases with one of the most impactful ones being the same-sex marriage ruling in Obergefell v. Hodges (2015).
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Due process is a foundation of law that ensures that any legal proceeding follows a fair set of rules and procedures. Due process of law in the Constitution guarantees and protects individual rights in any legal proceeding. The Due Process Clause ensures that citizens cannot be deprived of "life, liberty or property" without a fair and just legal proceeding. The 14th Amendment, also known as the Due Process Amendment, protects the rights guaranteed to citizens in the Bill of Rights most notably the 4th, 5th, 6th, 7th, and 8th Amendments.
There are three types of due process of law: procedural due process, incorporation of due process, and substantive due process. Procedural protects citizens by giving them a right to have notice and given a fair hearing before being deprived of "life, liberty or property." The Incorporation Clause of the 14th Amendment against the States makes sure that the Bill of Rights is being protected in all the states and has completely incorporated the 1st, 2nd, 4th, and 8th amendments nationwide. substantive due process protects the rights of citizens outside of legal proceedings like the right to marry, to choose your own job, or to move where you want.
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Video Transcript
Due Process
Due process simply means all legal proceedings will be fair. The government cannot interfere with a citizen's right to life, liberty or property as guaranteed in the 5th and the 14th Amendments. It also means every citizen has a right to adequate warning of legal proceedings and a right to a speedy trial or to be heard before a court. There are two types of due process:
- Procedural due process
- Substantive due process
Procedural due process states that any proceedings brought on against a citizen must be in accordance with the rules of law. In other words, governing bodies must follow the procedures in place to bring about any type of legal action. In procedural due process, the government cannot act in violation of a citizen's right to life, liberty or property. In short, this type of due process ensures fairness.
Perhaps a case will help clear things up. Goldberg v. Kelly (1970) is a landmark appellate court case that demonstrates how procedural due process works as it relates to the violation of one of the three key rights extended under the 5th and the 14th Amendments. Kelly, along with other New York City welfare recipients, sued Goldberg, head of the welfare payment department, for violating procedural due process when their benefits were cut without warning. On appeal, the court ruled that welfare benefits were a property right and required a hearing prior to the termination of aid.
Substantive due process, on the other hand, deals with the government's right to protect citizens' fundamental rights to life, liberty or property. Roe v. Wade (1973) explains substantive due process clearly. In this historic case, Roe, an unmarried Texas woman, wanted an abortion. Under Texas law, abortion was a felony unless the abortion was a medical necessity and only in cases where the mother's life was in jeopardy.
Roe sued Wade, then district attorney, claiming that the law was in violation of her 14th Amendment right to liberty. In other words, Roe believed that she had a right to an abortion. Roe prevailed and the Supreme Court reversed any state law that prohibited abortion in early pregnancy.
While substantive and procedural due process sound quite similar, think of it in this way: procedural due process deals with the way things are done, like protecting citizens from having benefits they are entitled to terminated without notice. Substantive due process, on the other hand, applies to the basic rights of citizens under the amendments, like prohibiting government involvement in a woman's right to choose abortion.
The 5th and 14th Amendments
Unlike other amendments, the 5th and the 14th Amendments contain very similar language as it relates to a citizen's right to due process. However, there are differences. Let's take a look at each amendment separately. The 5th Amendment guarantees:
- No citizen can be forced to answer to a crime without formal charges.
- No citizen can be charged with the same crime twice.
- No citizen can be forced to self-incriminate.
- No citizen can be deprived of life, liberty or the pursuit of happiness without due process.
- No citizen shall have his private property taken for public use.
Basically, if a person was to commit a crime, he must be formally charged and has a right to answer to the charges. Once convicted of a crime, one cannot be re-tried for the crime. During the process of arrest or trial, no citizen can be forced to testify against himself. Due process is mandatory and must be extended to all people.
For example, the police cannot imprison a person without formal charges, an indictment or a conviction. The indictment or conviction is the due process. Lastly, the government cannot take a person's possessions at will and for no reason without paying him back.
The 14th Amendment guarantees:
- Any person born in the United States has a right to citizenship.
- No citizen can be deprived of life, liberty and property without due process.
- All citizens are guaranteed equal protection.
The 14th Amendment is similar in that it too has a due process clause. Just like in the 5th Amendment, due process means that no person can be held against their own will, be stripped of their rights to enjoy life and possessions or be discriminated against.
Lesson Summary
In sum, due process simply means all legal proceedings will be fair. For that, every citizen has a right to adequate warning of legal proceedings and a right to a speedy trial or to be heard before a court, and there are two ways this happens. Procedural due process states that any proceedings brought against a citizen must be in accordance with the rules of law. Substantive due process, on the other hand, deals with the government's right to protect citizens' fundamental rights to life, liberty or property. The 5th and 14th Amendments both contain a due process clause. The 5th Amendment guarantees:
- No citizen can be forced to answer to a crime without formal charges.
- No citizen can be charged with the same crime twice.
- No citizen can be forced to self-incriminate.
- No citizen can be deprived of life, liberty or the pursuit of happiness without due process.
- No citizen shall have his private property taken for public use.
The 14th Amendment guarantees:
- Any person born in the United States has a right to citizenship.
- No citizen can be deprived of life, liberty and property without due process.
- All citizens are guaranteed equal protection.
Both amendments guarantee a citizen the right to life, liberty and property.
Learning Outcomes
Upon completing this lesson, you will be able to:
- Identify the importance of the 5th and 14th Amendments
- Summarize the guarantees provided by the 5th and 14th Amendments
- Differentiate between procedural and substantive due process using case examples to illustrate the differences
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