Anaya Nolan
Due process is a cornerstone of the US legal system, protecting individuals from arbitrary judgement by the government. The Fifth and Fourteenth Amendments of the US Constitution guarantee due process to all persons located within the US. The two types of due process are procedural due process and substantive due process. Procedural due process is concerned with the procedures the government must follow in criminal and civil matters, while substantive due process relates to rights that individuals have from government interference. The requirements for due process vary depending on the nature of the subject matter and individual circumstances. In criminal procedures, the court looks at whether the procedure is offensive to the notion of fundamental fairness, while in civil contexts, a balancing test is used to evaluate the government's chosen procedure.
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What You'll Learn
Criminal vs civil proceedings
The American legal system is comprised of two very different types of cases: civil and criminal. Criminal cases involve offences against the state or society as a whole, even if an individual is harmed. They are prosecuted by the state in a criminal court. Civil cases, on the other hand, typically involve legal disputes between parties and are handled through civil lawsuits in civil court.
Criminal cases can result in jail time and monetary punishment, whereas civil cases generally only result in monetary damages or orders to do or not do something, known as injunctions. Criminal defendants have a constitutional right to a trial by jury and are entitled to an attorney, who will be assigned to them if they cannot afford one. In civil cases, the defendant does not go to jail for losing the case.
The standard of proof is also very different in criminal versus civil cases. In criminal cases, the prosecutor must prove the defendant is guilty beyond a reasonable doubt, meaning there is no other reasonable explanation outside of the defendant's guilt. In civil cases, the standard of proof is lower, with the case needing to be proven by a preponderance of the evidence, meaning it is more likely than not that something occurred in a certain way.
Due process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power. In criminal law, the framework for assessing procedural rules is determining whether the procedure is offensive to the concept of fundamental fairness. In civil law, a balancing test is used that evaluates the government’s chosen procedure with respect to the private interest affected, the risk of erroneous deprivation of that interest, and the government interest at stake.
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Procedural due process
The procedures for procedural due process include the right to an unbiased tribunal, notice of the proposed action and grounds, the opportunity to present reasons against the action, the right to present evidence and call witnesses, the right to know opposing evidence, the right to cross-examine adverse witnesses, a decision based solely on the evidence presented, the opportunity to be represented by counsel, and the requirement for the tribunal to prepare a record of the evidence and written findings of fact and reasoning for its decision.
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Substantive due process
The interpretation of substantive due process has evolved since the Lochner Era (c. 1897-1937), when it was used to strike down minimum wage and labour laws to protect freedom of contract. In 1937, the Supreme Court rejected this interpretation in West Coast Hotel v. Parrish, allowing Washington to implement a minimum wage for women and minors. The Supreme Court has since determined that fundamental rights protected by substantive due process are those deeply rooted in US history and tradition, viewed in light of evolving social norms.
Much of the litigation involving substantive due process challenges the validity of unenumerated rights and seeks particular outcomes instead of merely contesting procedures. Successful cases result in the Supreme Court recognising constitutionally-based liberty and limiting or nullifying laws that seek to restrict that liberty.
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Fundamental fairness
The concept of "fundamental fairness" is integral to the interpretation and application of due process in law. Due process, as outlined in the Fourteenth Amendment, prohibits the state from depriving "any person of life, liberty, or property, without due process of law".
In the context of criminal law, fundamental fairness dictates that procedures must be evenhanded to prevent the arbitrary exercise of government power. This includes the right to a jury trial, as outlined in the Bill of Rights, and other protections such as the right to an attorney and the right to present evidence, as established in case law.
In civil law, a balancing test is used to evaluate the government's chosen procedure, considering the private interest affected, the risk of erroneous deprivation of that interest, and the government's interest. For example, in the case of a teacher with an informal long-term arrangement, the court may consider the established custom of treating such instructors as having tenure, thereby creating an "entitlement" that warrants due process protection.
The interpretation and application of due process have evolved over time, with the Supreme Court elaborating on the original understanding. The Court's decisions reflect the changing nature of the relationship between individuals and the government, striving to balance individual liberty with the demands of organised society.
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Liberty and property rights
The concept of due process primarily refers to the Fifth Amendment to the US Constitution, which states that no one shall be "deprived of life, liberty or property without due process of law" by the federal government. The Fourteenth Amendment, ratified in 1868, contains the same clause, extending this obligation to the states.
The Fourteenth Amendment requires the provision of due process when an interest in one's "life, liberty or property" is threatened. Traditionally, the Court determined this by reference to the common understanding of these terms, as embodied in the development of common law. However, in the 1960s, the Court began to expand the "liberty" and "property" aspects of the clause to include non-traditional concepts, such as conditional property rights and statutory entitlements.
The "liberty" interest has been expanded to include various protected interests, some statutorily created and some not. For example, in Ingraham v. Wright, the Court agreed that school children had a liberty interest in freedom from wrongfully or excessively administered corporal punishment.
The "property" aspect has also been broadened to include certain governmental benefits, such as welfare benefits, which are now considered "property" with due process protections. This expansion of the notion of property rights has led to a re-evaluation of the procedures for depriving someone of this new category of property rights.
The Due Process Clause also applies to the creation of taxing districts, as taxation is a deprivation of property. Public hearings are typically required before the formation of a taxing district.
In conclusion, the Fourteenth Amendment's Due Process Clause has evolved to encompass a broader interpretation of "liberty" and "property" rights. This expansion ensures that individuals are protected from arbitrary government power and that their rights are safeguarded through fair procedures.
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Frequently asked questions
Common law refers to the body of law derived from judicial decisions and the customs and doctrines that guide these decisions. Civil due process law, on the other hand, is concerned with the procedures the government must follow in civil matters, such as the right to a jury trial.
Common law has a long history and tradition that guides its application. Civil due process law, in contrast, did not appear on the legal landscape until a century after the Due Process Clause was first adopted.
Common law applies to a broad range of cases and situations, whereas civil due process law is more limited in scope, focusing specifically on civil proceedings and the rights of individuals in these contexts.
