procedural due process

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The U.S. Constitution requires that federal and state governments abide by certain procedures to protect the essential interests of all citizens. The Fifth and the Fourteenth Amendments of the U.S. Constitution guarantee due process to all citizens. The Amendments, also known as the Due Process Clauses, protect citizens when the government deprives them of life, liberty, or property, and limits the government’s arbitrary exercise of its powers. The U.S. Constitution requires two types of due process: procedural due process and substantive due process. As indicated by the name, procedural due process is concerned with the procedures the government must follow in criminal and civil matters, and substantive due process is related to rights that citizens have from government interference (e.g. right to privacy). 

Procedural due process refers to the constitutional requirement that when the government acts in such a manner that denies a citizen of life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by a neutral decision-maker. The government must also demonstrate that there is an articulated standard of conduct for their actions with sufficient justification. The requirements, called “fundamental fairness,” protect citizens from unjust or undue deprivation of interest. However, the specific procedures guaranteed by the U.S. Constitution may depend on the nature of the subject matter of the interest in question as well as each individual’s circumstances. In the article “Some Kind of Hearing,” the famous Judge Henry Friendly provides a list of due process elements for a fair hearing. Judge Friendly’s list remains highly persuasive to this day. The list goes as follows:

  1. A neutral and unbiased tribunal.
  2. A notice of the government’s intended action and the asserted grounds for it.
  3. The opportunity for the individual to present the reasons why the government should not move forward with the intended action.
  4. The right for the individual to present evidence, including the right to call a witness.
  5. The right for the individual to see the opposing side’s evidence.
  6. The right to cross-examination of the opposition’s witnesses.
  7. A decision based exclusively on the evidence presented.
  8. The opportunity to representation by counsel.
  9. The requirement that the tribunal prepare a record of the evidence presented.
  10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

In most cases, we examine the fundamental fairness of the government’s actions to determine whether the government has met the requirements for due process. The criteria for determining whether the due process requirements have been met depends on whether the particular government action concerns a civil or criminal proceeding. Specifically in civil contexts, the courts utilize a balancing test between private interests, the government’s public interest, and the possibility of the government procedure’s erroneous deprivation of private interest in evaluating government conduct. On the other hand, in criminal procedures, the court looks to whether the procedure the government has adopted is offensive to the notion of fundamental fairness for the due process analysis. The analysis for due process is thus inquiring more narrowly for criminal procedures.

See: This Washington Law Review article, this list of Due Process Supreme Court CasesSlaughter-House Cases, 83 U.S. 36 (1872)Mathews v. Eldridge, 424 U.S. 319 (1976).

[Last updated in January of 2024 by the Wex Definitions Team