Individual rights - Due process

Learning Outcomes

After reading this article, you will be able to distinguish procedural and substantive due process, identify what interests are protected, and apply the correct level of scrutiny to government actions affecting life, liberty, or property. You will also understand how due process interacts with fundamental rights and be able to answer MBE-style questions on this topic.

MBE Syllabus

For MBE, you are required to understand the constitutional principles that limit government action against individuals. This article covers:

• The distinction between procedural and substantive due process.
• What constitutes "life, liberty, or property" interests.
• The requirements for fair procedures when government deprives a person of protected interests.
• The levels of scrutiny applied to government action affecting fundamental rights.
• The identification and treatment of fundamental rights under substantive due process.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT a fundamental right protected by substantive due process?
   1. The right to marry
   2. The right to vote
   3. The right to pursue a specific occupation
   4. The right to use contraception
2. If a state terminates a public employee who can only be fired "for cause," what process is generally required under procedural due process?
   1. No process is required
   2. Notice and an opportunity to respond before termination
   3. Only a post-termination hearing
   4. A jury trial before termination
3. A state passes a law banning all persons from owning handguns. Which level of scrutiny applies if challenged under substantive due process?
   1. Rational basis
   2. Intermediate scrutiny
   3. Strict scrutiny
   4. No scrutiny; the law is presumed valid
4. Which of the following best describes "property" for procedural due process purposes?
   1. Only real estate
   2. Any government benefit a person has a legitimate claim to
   3. Only physical possessions
   4. Any expectation of future employment

Introduction

Due process is a core constitutional protection that limits how government may deprive individuals of life, liberty, or property. The Due Process Clauses of the Fifth and Fourteenth Amendments require both fair procedures and, in some cases, substantive justification for government actions. Understanding the distinction between procedural and substantive due process, and knowing when each applies, is essential for MBE success.

Procedural Due Process

Procedural due process ensures that government must follow fair procedures before depriving a person of life, liberty, or property. The required procedures depend on the interest at stake and the context.

Key Term: Procedural Due Process The constitutional requirement that government provide fair procedures—such as notice and a hearing—before depriving a person of life, liberty, or property.

What Interests Are Protected?

The government must provide due process before depriving a person of:

• Life: The most severe deprivation, such as the death penalty.
• Liberty: Includes physical freedom (incarceration), as well as certain intangible rights (e.g., freedom from government-imposed stigma, probation, or parole).
• Property: Not just land or possessions, but also government benefits or jobs when a person has a legitimate claim of entitlement.

Key Term: Life, Liberty, or Property Interests protected by the Due Process Clauses; includes not only physical safety and freedom, but also certain government benefits and recognized legal rights.

What Process Is Due?

The Supreme Court uses a balancing test to determine what procedures are required:

1. The private interest affected.
2. The risk of erroneous deprivation and the value of additional safeguards.
3. The government’s interest, including administrative burden.

At a minimum, due process usually requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner.

Substantive Due Process

Substantive due process protects certain fundamental rights from government interference, regardless of the procedures used. If a law infringes a fundamental right, the government must show a compelling interest and that the law is narrowly tailored.

Key Term: Substantive Due Process The doctrine that certain rights—such as privacy, marriage, and child-rearing—are so fundamental that government may not infringe them without a compelling justification.

Fundamental Rights

The Supreme Court recognizes several fundamental rights under substantive due process, including:

• Marriage and family relationships
• Procreation and contraception
• Parental rights in child-rearing
• Bodily integrity (refusing medical treatment)
• Privacy in intimate conduct

If a law substantially burdens a fundamental right, strict scrutiny applies: the law must be necessary to achieve a compelling government interest.

Key Term: Fundamental Right A right so important that government may not infringe it without meeting strict scrutiny; includes rights like marriage, privacy, and parental control.

Non-Fundamental Rights

If a right is not fundamental, government action need only be rationally related to a legitimate interest (rational basis review).

Levels of Scrutiny

• Strict scrutiny: Applies to laws affecting fundamental rights. The law must be necessary to achieve a compelling government interest.
• Rational basis: Applies to laws affecting non-fundamental rights. The law must be rationally related to a legitimate government interest.

Worked Example 1.1

A city passes an ordinance banning all unmarried adults from living together. A group of adults challenges the law, claiming it violates due process. What level of scrutiny applies, and is the law likely constitutional?

Answer: The right to choose household companions is not a fundamental right. The law is reviewed under rational basis. Unless the law is arbitrary or irrational, it will be upheld. The law is likely constitutional.

Worked Example 1.2

A state terminates welfare benefits to a recipient without notice or a hearing. The recipient sues, arguing a due process violation. What is the likely result?

Answer: Welfare benefits are a property interest if the recipient has a legitimate claim of entitlement. Due process requires notice and an opportunity to be heard before termination. The state’s action violates procedural due process.

Exam Warning

Laws that classify based on suspect categories (race, national origin) or burden fundamental rights may also trigger equal protection analysis. Always check if the issue is due process, equal protection, or both.

Revision Tip

When analyzing a due process question, first ask: Is the right fundamental? If yes, apply strict scrutiny. If not, apply rational basis.

Summary

Due process requires both fair procedures (procedural due process) and, for certain fundamental rights, strong substantive justification (substantive due process) before government can deprive a person of life, liberty, or property. Fundamental rights trigger strict scrutiny; other interests are protected by rational basis review.

Key Point Checklist

This article has covered the following key knowledge points:

• Due process protects against deprivation of life, liberty, or property by government.
• Procedural due process requires fair procedures before deprivation.
• Substantive due process protects fundamental rights from unjustified government interference.
• Fundamental rights include marriage, privacy, and parental control.
• Strict scrutiny applies to laws burdening fundamental rights; rational basis applies otherwise.
• Property interests include government benefits if there is a legitimate claim of entitlement.
• The required procedures depend on a balancing of interests.

Key Terms and Concepts

• Procedural Due Process
• Life, Liberty, or Property
• Substantive Due Process
• Fundamental Right