due process

Understanding Due Process and Your Rights

Due process is a fundamental legal concept that aims to protect individuals from unfair or arbitrary actions by the government. The basic idea behind due process is that the government must follow proper procedures and rules whenever it seeks to deprive someone of life, liberty, or property.

Origins of Due Process

The concept of due process traces back to the Magna Carta in 1215, which limited the power of the English king. Over time, due process protections were included in the Fifth and Fourteenth Amendments to the U.S. Constitution. Today, due process applies to both federal and state actions.

Procedural Due Process

Procedural due process deals with the procedures and processes the government must follow before it deprives someone of life, liberty, or property. For example, individuals are generally entitled to receive notice, a hearing, and a neutral decision-maker. The type of notice and hearing required depends on the situation.

Notice and Hearing Requirements

In some cases, like when the government seeks to take private property, extensive notice and hearings are needed. But in emergency situations, like when the government quickly impounds contaminated food, very little process may be required beforehand. Still, a hearing would likely be required afterwards.

Neutral Decision-Maker

Procedural due process also requires an impartial decision-maker. This means the person making decisions cannot have any conflicts of interest or bias related to the case. For criminal trials, the right to an impartial jury is a key due process protection.

Substantive Due Process

Substantive due process deals with the underlying substance of laws and government actions. Rather than just looking at procedures and processes, substantive due process examines whether the government’s actual deprivation of life, liberty or property is justified. Certain fundamental rights are protected under substantive due process.

Fundamental Rights

Rights like privacy, marriage, travel, voting, and childbearing are considered so fundamental that the government can only deprive people of them if it has a compelling interest. This means frivolous or unimportant government objectives do not justify depriving people of fundamental rights. The standard used to review alleged violations depends on the right at issue.

Right to Privacy

When laws infringe on privacy rights protected under substantive due process, like the right to contraception or abortion, courts apply strict scrutiny. This means the law must further a compelling government interest and be narrowly tailored to achieve that interest using the least restrictive means. Few laws survive strict scrutiny.

Incorporation of Due Process

Another important aspect of due process doctrine is incorporation. This refers to the application of federal due process rights against the states. Through a series of 20th century Supreme Court rulings, most of the protections in the Bill of Rights were incorporated and now apply to state and local governments under the Fourteenth Amendment’s Due Process Clause.

Selective Incorporation

Incorporation happened gradually on a right-by-right basis, which is called selective incorporation. As various cases came before the Supreme Court, the Court would decide whether or not that specific right should be applied to the states. Nearly all rights in the first eight amendments have been incorporated over time.

Impact on States

Incorporation profoundly impacted state criminal procedures. States must now follow nearly all Bill of Rights protections, like the right to counsel, trial by jury, speedy trial, impartial judge, protection against self-incrimination, and more. These requirements continue to be refined by courts today.

Waiving Due Process Rights

It’s important to understand that many due process rights can be waived. Things like the right to remain silent, the right to counsel, the right to a jury trial, and even the right to appeal can all be waived under various circumstances. Waivers must generally be voluntary, knowing, and intelligent.

Plea Bargains

One common example is plea bargains – by pleading guilty, defendants inherently waive multiple trial rights. Still, plea bargains cannot be coerced and courts must ensure defendants understand the rights they are relinquishing before accepting a guilty plea.

Right to Appeal

Another right commonly waived is the right to appeal. After being convicted and sentenced, defendants only have a limited time to file an appeal. Missing the deadline effectively waives this right. This demonstrates how easily due process rights can slip away.

Conclusion

At its core, due process is about fairness, justice, and checking government power. It aims to prevent arbitrary deprivations of life, liberty, or property. Both procedural and substantive due process place vital constraints on all levels of government. And thanks to incorporation, states must honor most Bill of Rights protections. Still, many due process rights can be easily waived – so understand your rights!