Due Process

What Is Due Process?

Due process is the constitutional principle requiring fundamental fairness in government action. The Fifth Amendment binds the federal government, and the Fourteenth Amendment extends due process protections to actions by state and local governments. The doctrine has two distinct branches: procedural due process and substantive due process. Both are essential to U.S. constitutional law and shape much of civil and criminal procedure.

Procedural Due Process

Procedural due process requires fair procedures before government deprivation of protected interests. The Supreme Court's three-factor test from Mathews v. Eldridge, 424 U.S. 319 (1976), balances:

• The private interest affected by the action - The risk of erroneous deprivation under existing procedures and the value of additional safeguards - The government's interest in efficiency and the burden of providing additional process

Typical procedural requirements include notice of the action, an opportunity to be heard, neutral decision-makers, the right to present evidence, and the right to confront adverse evidence.

Substantive Due Process

Substantive due process protects fundamental rights deeply rooted in U.S. history and tradition or implicit in ordered liberty. The doctrine has been controversial, but the Supreme Court has used it to recognize rights including marriage, family integrity, contraception, and refusal of unwanted medical treatment. Government action infringing fundamental rights faces strict scrutiny and must be narrowly tailored to serve a compelling interest. Lesser interests receive rational basis review, requiring only that the law be rationally related to a legitimate government purpose.