Due Process
| Author | Jeffrey Wilson |
| Pages | 219-224 |
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Under both the Fifth and Fourteenth Amendments to the U.S. Constitution, neither the federal government nor state governments may deprive any person "of life, liberty, or property without due process of law." A similar due process provision was found in the Magna Charta, as well as early state constitutions. Chief Justice William Howard Taft explained the purpose behind the clauses in Truax v. Corrigan (1921) as follows: "The due process clause requires that every man shall have the protection of his day in court, and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. It, of course, tends to secure equality of law in the sense that it makes a required minimum of protection for every one's right of life, liberty, and property, which the Congress or the Legislature may not withhold."
Courts have interpreted the due process clauses as providing two distinct limitations on government. First, the clauses provide for procedural due process, which requires the government to follow certain procedures before it deprives a person of life, liberty, or property. Cases that address procedural due process usually focus on the type of notice that is required of the government or the type of hearing that must be held when the government takes a particular action. Second, the clauses establish substantive due process, under which courts determine whether the government has sufficient justification for its actions. Because courts use substantive due process to protect certain fundamental rights of U.S. citizens, issues related to substantive due process have been the subject of extensive debate.
Procedural due process focuses primarily on a person's right to be heard, rather than a person's right to prevail in a dispute. Courts usually consider two broad questions in cases involving procedural due process. First, courts consider whether the government's action involves an interest in life, liberty, or property. Second, courts consider whether the
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procedures that the government has employed assure that a person receives fair treatment.
The term "life" in the due process clauses is not often the subject of dispute. Even where the government deprives a person of life (e.g., through enforcement of the death penalty), the government seldom does so without following proper procedures. Where the government has allegedly taken a life in an impermissible manner, challenges to the action are usually based on another constitutional provision. For instance, challenges to the death penalty have typically been based on the Eighth Amendment's proscription against cruel and unusual punishment. Similarly, arguments related to whether life begins at conception or birth, especially in abortion cases, focus on the liberty interests of the mother rather than the definition of "life" in the due process clauses.
The U.S. Supreme Court has sought on a few occasions to clarify the meaning of the term "liberty," though the term has never had a precise definition. In Meyer v. Nebraska (1923), the Court stated that liberty "denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience and generally to enjoy those privileges long recognized as essential to the orderly pursuit of happiness of free men." This statement has been quoted by several subsequent Supreme Court cases.
Liberty interests are most clearly involved when the government's action results in physical restraint, especially in cases involving prisoners. In the examples below, the Supreme Court determined that the government was required to provide due process because of the deprivation of liberty interests:
Revocation of parole (Morrissey v. Brewer [1972])
Revocation of probation (Gagnon v. Scarpelli [1973])
Revocation of "good time credits" awarded to prisoners under state law (Wolff v. McDonnell [1974])
Involuntary civil commitment to a mental institution (Addington v. Texas [1979])
Transfer of inmates to a strict ("supermax") prison facility (Wilkinson v. Austin [2005])
Transfer of a prisoner to a mental hospital (Vitek v. Jones [1980])
Involuntary administration of antipsychotic medications (Washington v. Harper [1990])
By comparison, the Court has refused to recognize other forms of liberty interests related to prisoners, including the following examples:
Remaining in a minimum security prison, as opposed to a maximum security prison (Meachum v. Fano [1976])
A review of a prisoner's request to commute his life sentence (Connecticut Board of Pardons v. Dumschat [1981])
Visitation, including visits from family members (Kentucky Department of Corrections v. Thompson [1989])
Rescission of discretionary parole prior to a prisoner's release (Jago v. Van Curen [1981])
In addition to restrictions on physical freedom, liberty interests include all of the rights that are granted to the people either expressly...
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