What Is Required by Due Process?

The U.S. Constitution guarantees you due process protections against government interference. The federal government and its agencies must follow constitutional procedures in civil and criminal cases. The Fourteenth Amendment to the U.S. Constitution extends due process protections to state and local governments as well.

If you have questions about your due process rights and how you can protect your fundamental freedoms, talk to a local civil rights attorney.

Due Process Requirements

Due process refers to the procedures and rules the government must follow in civil and criminal cases. The government cannot infringe on your liberties without lawful reason, explanation, and your chance to respond through legal procedures.

The specific requirements for due process can depend on the situation. Generally, fundamental fairness involves the following procedural protections:

• The right to an impartial tribunal to hear your case
• The right to receive notice of the allegations or claims against you
• The opportunity to have your day in court to challenge the allegations
• The ability to present evidence and call witnesses
• The right to know the government’s evidence against you
• The ability to cross-examine accusers
• The right to counsel or an attorney
• The right to have a record of the evidence and findings of the decision-maker

Due Process and the Rule of Law

The idea of due process is ancient. For example, in the 1300s, the English Magna Carta established that even the monarch was subject to law and could not take property or put someone in jail without lawful procedures. In America, the Fifth and Fourteenth Amendments to the U.S. Constitution establish due process rights:

• Fifth Amendment. No person shall be deprived of life, liberty, or property, without due process of law.
• Fourteenth Amendment. No state shall deprive any person of life, liberty, or property, without due process of law.

The Fifth Amendment provides the basis for due process and other constitutional protections. The due process clause of the Fourteenth Amendment applies due process and equal protection rights to state governments. Through the incorporation doctrine, the U.S. Supreme Court has found that many of the individual due process protections apply against state governments.

Procedural vs. Substantive Due Process

Due process includes the right to fundamental fairness — there must be a balance between your individual rights and government interests. This limits the overall power of the American government in dealing with your individual rights. Due process protections include both procedural and substantive protections.

Procedural Due Process

Procedural due process requires the federal and state governments to establish and follow fair procedures in the civil and criminal legal system.

For example, if the government proposes regulations, imposes fines, or takes away property rights through eminent domain, you must have the chance to present your side through legally established administrative or judicial procedures. The same applies in criminal trials where you risk losing your individual liberty.

Substantive Due Process

Substantive due process limits government interference with certain fundamental rights, even if procedural safeguards are followed. Some of these fundamental rights and liberty interests include the right to privacy, freedom to marry, and raise your children as you see fit.

Rights considered fundamental can change or be revoked. For example, before 2022, the freedom to make decisions about abortion was constitutionally protected through the fundamental right to privacy. The U.S. Supreme Court had established this principle in Roe v. Wade (1973) and reaffirmed it in subsequent rulings. However, as the composition of the U.S. Supreme Court changes over time, it can overturn precedents securing rights. In 2022, the Court did just that, overturning Roe v. Wade in the case Dobbs v. Jackson Women’s Health Organization. Because of this decision, there is no longer a constitutional right to abortion in the United States.

Due Process in Criminal and Civil Contexts

Due process applies when the government interferes with your property interests. For example, if the state government wants to build a highway through your property, it can do so through its power of eminent domain. However, the government must follow specific legal procedures and pay fair compensation.

There are additional due process protections in criminal cases. While civil law involves financial or property rights, criminal penalties deprive you of your freedom and liberty. The Fifth and Sixth Amendments provide due process protections in criminal cases, including:

• Right to an attorney
• Right to a speedy trial
• Right to protection against self-incrimination
• Right to an impartial jury trial
• Right to confront witnesses
• Right against cruel and unusual punishments
• Right against double jeopardy (being tried twice for the same crime)

Landmark Supreme Court Cases on Due Process

In Griswold v. Connecticut (1965), the U.S. Supreme Court found state contraception bans violated peoples’ right to privacy. The right to privacy is not explicitly stated in the Constitution; the Court inferred it from other fundamental rights.

In Goldberg v. Kelly (1970), the U.S. Supreme Court ruled that due process protections apply to government benefits. In Goldberg, a New York welfare recipient was at risk of losing benefits. The Court said it was a due process violation for the state to deprive the person of a full hearing before withdrawing their benefits.

In Mathews v. Eldridge (1976), the U.S. Supreme Court developed a three-factor test to determine what due process requires in an administrative proceeding. Due process adjudication must balance these three factors:

1. The private interest that is impacted by government action
2. The risk of erroneously depriving the person’s interests and how much more procedural safeguards would reduce the chance of error
3. The burden on the government if it provided the additional procedures

Criminal suspects have the right to an attorney. However, not everyone can afford the costs to hire their own criminal defense lawyer. In Gideon v. Wainwright (1963), the Court found the right to counsel applies even if the defendant cannot afford an attorney. The state must provide attorneys for criminal defendants who cannot afford a lawyer.

The case of Miranda v. Arizona (1966) gives us Miranda rights. Police must inform people of their rights to remain silent and to an attorney before a custodial interrogation. This protects your rights against self-incrimination and your right to counsel.

Enforcing Your Due Process Rights

If the government interferes with your freedom, property rights, or privacy, you may have a due process claim. A civil rights attorney can review your case and stop the government from interfering in your private life. Contact a civil rights lawyer for legal advice about enforcing your due process rights.