Due Process- We hear the term almost continuously. What is it?

Question

Hour by hour there is breaking news about actions by Federal Government Officials and employees said to violate the Due Process rights guaranteed by the U.S. Constitution. Legacy news constantly uses the label “Due Process” unaccompanied by any definition or explanation. The term is thrown around so much, and in so many different contexts, that it seems as if “Due Process” is what anybody “feels” it is. Help!

Answer 1

Due process is basically the idea that the government can't just mess with your life liberty or property without following fair rules and procedures first. It's like a constitutional safety net to stop arbitrary power trips.

In the US it comes straight from the 5th and 14th Amendments. The Fifth says no one shall be deprived of life liberty or property without due process of law and the Fourteenth applies that same protection against the states too. So whether it's federal or state level they gotta play by the book.

There are two main flavors substantive and procedural. Procedural due process is about the "how" – you get notice of what's happening a chance to be heard an impartial decision maker stuff like that. Think criminal trials where you have the right to a lawyer to confront witnesses etc. Substantive due process is more about the "what" – protecting certain fundamental rights that the government can't infringe on even if they follow all the procedures like privacy rights or marriage equality things the courts have read into it over time.

It's not some super rigid checklist though. Courts decide case by case what "due process" actually requires depending on the situation. For something low stakes like a parking ticket it might just be a hearing. For something huge like losing your kids or going to prison it demands way more safeguards.

People throw the term around a lot in politics especially when talking about arrests trials or government overreach but at its core it's about fairness and preventing tyranny by making sure power isn't exercised randomly or vindictively. Without it we'd be in a much scarier place where the state could just snap its fingers and ruin someone on a whim.

Kinda wild how something so foundational gets debated so fiercely even today huh.

Answer 2

It's much more than the Black Eyed Peas music video "I Gotta Feeling", might suggest.

Due Process refers to the legal procedures that must be followed when criminal or quasi-criminal charges are brought against a resident of the United States. Under the U.S. Constitution, the 5th Amendment guarantees that the federal government must provide due process, while the 14th Amendment extends this requirement to state governments, including arms of the state such as counties and municipalities.

At its core, due process ensures that individuals charged with crimes are afforded (1) notice (of the charges against them) and a (2) hearing (providing an opportunity to contest the charges). This hearing must be conducted with a level of procedural formality and fairness that is proportional to the seriousness of the charges. The rights accorded during the required hearing (such as a right to an Article 3 Judge or, by contrast, an Article 2 Immigration Judge) also depend on the status of the individual facing the charges. For example, U.S. citizens are entitled to more procedural protections than lawful permanent residents (green card holders), and green card holders, in turn, are entitled to more protections than undocumented immigrants.

Though a civil case, the U.S. Supreme Court case of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) in an unambiguous fashion addresses due process as broadly applied across criminal as well as civil proceedings:

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”.