Under the Fifth and Fourteenth Amendments of the U.S. Constitution, everyone is guaranteed legal due process (fair treatment) under certain circumstances. There are two major subcomponents: procedural due process and substantive due process. Procedural due process refers to the constitutional provisions that prohibit federal and state governments from depriving persons of life, liberty, or property without a fair legal process. Substantive due process refers to the constitutional provisions that require all laws, federal and state, to be reasonable. The Fifth Amendment to the U.S. Constitution, the part of the Bill of Rights that includes the due-process principle, applies only to the federal government—that is, it prohibits the federal government from violating the requirements of due process. In 1833, in the landmark case of Barron v. Baltimore, the U.S. Supreme Court determined that the Bill of Rights applied only to the federal government. However, due process, as provided in the Fifth Amendment, applies to state governments via the Fourteenth Amendment to the constitution, which is also known as the due-process clause. The Fourteenth Amendment’s due-process clause allows several provisions of the Bill of Rights to be applicable to state governmental conduct, including the Fifth Amendment’s due-process provision. The Fourteenth Amendment’s due-process clause “incorporates” several of the provisions of the Bill of Rights and makes them applicable to state governments. Thus, this function of the Fourteenth Amendment is known as incorporation. The principles of due process under the Fifth and Fourteenth Amendments are very similar. However, a due-process case involving federal governmental conduct must be brought before the court by using the Fifth Amendment as the basis for the case, whereas a dueprocess case involving state governmental conduct must be brought before the court by using the Fourteenth Amendment. Failure to refer to the appropriate amendments in a due-process action may lead to the case being delayed or dismissed. Procedural due process deals with the fairness of criminal and civil proceedings. Fair legal process generally includes providing notice of the proceeding to the relevant parties, bringing the case before an impartial tribunal or arbiter, and providing the parties with an opportunity to present evidence before the tribunal or arbiter hearing the case. First, when a private, nongovernmental party deprives another of life, liberty or property, there is no due-process claim. However, there may be some other criminal or civil claim against that party, such as false imprisonment, theft, or WRONGFUL DISCHARGE. Corporate human resource managers often are involved with employee terminations in order to document that due process procedures were followed. Second, if the deprivation involves something other than life, liberty, or property, there is no due-process claim. The U.S. Supreme Court is in charge of interpreting the meaning of “life, liberty, and property” for dueprocess purposes. The definitions of “liberty” and “property” have undergone periods of being both broadly and narrowly defined by the court, depending on the political climate or the sociopolitical beliefs of the majority of the court’s justices. When a federal or state government attempts to deprive a person of life, liberty, or property, some sort of fair legal process is required. However, whether the process is required before or after the deprivation occurs depends on the severity of the deprivation. The more severe the deprivation, the more likely predeprivation notice and a hearing will be required to satisfy procedural due process. “Liberty” is defined as a significant freedom provided by the U.S. Constitution or state laws, including the right to CONTRACT, the right to engage in gainful EMPLOYMENT, the right to be free from unjustified intrusions of personal security, and the right to refuse medical treatment. One recent due process issue is employers’ and employees’ rights regarding use of a company’s computer. “Property” is defined as an entitlement right—that is, an interest that a person may reasonably expect to receive on a continuing basis. State laws may also create property interests, and where this is the case, those interests may not be terminated without procedural due process. The definition of property includes common-sense possessions such as PERSONAL PROPERTY, real property (land), and money, but it also encompasses less obvious interests such as
• the continued receipt of WELFARE benefits. If the government wishes to terminate a person’s welfare benefits, there must be a pre-termination hearing that approves the termination.
• uninterrupted public education. When a public school attempts to suspend a student, that student must be given notice of the charges and an opportunity to explain his side.
• continued public employment. A public employee who has tenure, or who reasonably believes that his employment may be terminated only on sufficient grounds for termination, may not be terminated from employment without notice and a hearing.
Another component of due process, substantive due process, concerns the substance of laws. Substantive due process prohibits federal and state governments from creating laws that unreasonably infringe upon a person’s fundamental rights and freedoms (generally involving matters related to sexual relations, marriage, bearing children, and child rearing). When a law restricts or regulates a person’s fundamental rights, the court applies a standard called strict scrutiny in evaluating the validity of the law under substantive due process. Under strict-scrutiny evaluation, the government must prove to the court that the law is necessary to achieve a compelling state interest. As its name implies, strict scrutiny is very strict in its application and usually serves to invalidate state laws. Security changes since September 11, 2001, have redefined many areas of due process law. Due process is still an evolving concept, and its boundaries will no doubt be continually tested in the U.S. Supreme Court in the future.