Due Process of Law: Fifth and Fourteenth Amendments

Due Process of Law

The Due Process Clauses of the Fifth and Fourteenth Amendments guarantee that no person shall be deprived of life, liberty, or property without due process of law.

Procedural Due Process

Before the government can take away your life, liberty, or property, you are entitled to:

Notice: You must be informed of the action being taken against you

Hearing: You must have an opportunity to be heard before a neutral decision-maker

Right to Present Evidence: You can present your side of the story and challenge the government's evidence

Examples:

A student facing expulsion is entitled to a hearing

A driver facing license suspension must receive notice and a hearing

A welfare recipient cannot have benefits terminated without a hearing (Goldberg v. Kelly)

Substantive Due Process

Substantive due process protects certain fundamental rights from government interference, even if proper procedures are followed:

Right to privacy (Griswold v. Connecticut)

Right to marry (Loving v. Virginia, Obergefell v. Hodges)

Right to raise your children (Troxel v. Granville)

Right to bodily autonomy

Right to travel between states

The Incorporation Doctrine

The Fourteenth Amendment's Due Process Clause has been used to "incorporate" most of the Bill of Rights against state governments. This means states must respect the same fundamental rights that the federal government must respect.

Standard of Review

Courts evaluate government actions under different standards:

Rational Basis: Most laws — the government just needs a legitimate reason

Intermediate Scrutiny: Gender-based classifications — the law must serve an important government interest

Strict Scrutiny: Race-based classifications and fundamental rights — the law must be narrowly tailored to serve a compelling government interest