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Constitutional Due Process

When you are suspected of a crime, police cannot just imprison you. A procedure must be followed for investigating, gathering evidence, determining if there is probable cause to move forward, and arresting defendants. Once arrested, you are entitled to your day in court.

The reason these procedures must be followed is because the United States Constitution requires due process.  In order to make sure you get your due process and that your rights are respected, it is important to speak with an experienced attorney when you are being investigated or when you have been charged.

What is Due Process, According to the U.S. Constitution?

The term “due process” is found in both the Fifth Amendment of the United States Constitution and the Fourteenth Amendment of the United States Constitution.

  • The Fifth Amendment guarantees that no person shall be deprived of “life, liberty, or property, without due process of the law.”
  • The Fourteenth Amendment guarantees that no state shall “deprive any person of life, liberty, or property, without due process of law.”

The prohibition against deprivation without due process is the only command found within the Constitution twice.

The due process clauses in the Fifth and Fourteenth Amendment prohibit the government from unfairly depriving individuals of their basic rights. The concept of due process originated in English common law, and even the Magna Carta in 1215 created an early due process guarantee by declaring no free man could be seized or imprisoned except under the law of the land or by the lawful judgment of peers.

Today, Constitutional due process has been interpreted to provide a great many protections, not just for criminal defendants, but also for the public at large.  Procedural due process refers to the process used to try and convict defendants accused of crimes, while substantive due process is a principle allowing courts to prevent government interference with fundamental rights.

What Is Procedural Due Process?

Procedural due process limits state and federal power by requiring certain procedures to be followed in both criminal and civil matters.  The Fourth Amendment right against unlawful search and seizure, the right to a trial by jury, the right to an attorney, and freedom from self-incrimination are all examples of provisions central to procedural due process.

It is the guarantee of procedural due process that ensures you will have your day in court if you are arrested and that your trial will be a fair one presided over by a jury of your peers.  If there is a problem with the procedures used to collect evidence, or a problem with the methods used to secure a conviction, you can argue your procedural due process rights were violated. This can lead to the exclusion of evidence from being used in court proceedings if it was collected illegally, and to the overturning of an unjust conviction.

What is Substantive Due Process?

Substantive due process is based on the premise that the constitution protects the public from unwarranted government intrusion infringing upon their fundamental rights. If the government passes a law that infringes on life, liberty, or property rights, a substantive due process analysis must be performed.

Substantive due process has been interpreted to create a right to privacy, although the Constitution does not expressly guarantee that right. In 1905, the Supreme Court declared a New York law regulating baker’s working hours was a violation of substantive due process because the bakers were deprived of their right to set their own terms for their work.  In the century following this seminal case, courts have repeatedly held the due process clauses in the constitution severely limit the ability of government to pass laws abridging liberties. The government may pass laws affecting a person’s fundamental rights only if the law is fair, is reasonable, and is in furtherance of a legitimate government interest.