What is Due Process? ... Basic Rights and Fundamental Fairness

By: LawInfo

You may hear the phrase "due process" in the media whenever a prominent criminal case is in the news, but where does it come from and what does it really mean?

Where is Due Process Found

Due process is a constitutional principle that our government must follow before it may take a person's freedom or property. The 5th Amendment states, "nor shall any person be subject for the same offense to be twice guarantees due process from the federal government, stating no person shall "be deprived of life, liberty, or property, without due process of law." The states are required to provide due process because the 14th Amendment states, "Nor shall any state deprive any person of life, liberty, or property, without due process of law."

What is Due Process

A simple definition means due process requires notice and an opportunity to be heard before adverse action is taken against you. In criminal cases examples of due process include the need for probable cause to arrest someone and that a criminal defendant is presumed innocent until proven guilty by an impartial judge or jury. Due process does not just exist in a criminal trial, any time a person's property interest may be taken due process protections also apply.

The courts have ruled that possessions such as a government issued license and even civil service jobs are property, which may only be revoked after a hearing. A quasi governmental organization like a homeowner's association is also subject to due process requirements. If a homeowner's association wants to fine a resident for bylaw violations such as excessive noise or because their house paint is the wrong color a hearing must first be held where the resident is given the opportunity to be heard.

Fundamental Rights

In addition to the "procedural due process" rights described above, which governs how the government must act, the constitution also guarantees "substantive due process" rights. While substantive due process is sometimes a difficult concept, it basically means that there are certain rights we hold to be so fundamental in our society that laws attempting to restrict them may be deemed to be unconstitutional. These "substantive rights" are considered to be so fundamental that they enjoy protection even if they are not explicitly mentioned in the Constitution. Even if procedural due process is followed in enacting and enforcing the law a substantive right "vetoes" the law.

Right to Privacy

The Constitution does not contain a right to privacy, but the courts have ruled that it exists. Our substantive due process right to privacy is the reason that the Supreme Court has prohibited the federal and state governments from enacting laws that completely restrict an adult's choice to have an abortion, buy contraceptives or engage in consensual sex. The substantive due process right to marry has formed the basis for striking down laws prohibiting interracial marriage nationwide and gay marriage in some states. However, the Supreme Court has not yet ruled on whether gay marriage is a fundamental right protected by the Constitution.

There are many variations and applications of due process. At the core, however, is something to which we can all relate - due process embodies the notion that there are certain basic rights and fundamental freedoms we enjoy as individuals within our society, whether they are explicitly stated or not.

For more information about due process, contact a lead counsel rated attorney by using our attorney search today.

Additional Constitutional Law Articles

Search LawInfo's Constitutional Law Resources