Similarities and differences for Substantive and procedural due process (Chapter 3)

Procedural Due Process: government must respect all, not just some, of our rights

Substantive Due Process: judicial interpretations of the due process clauses

Procedural Due Process:

• process government must follow when making and enforcing laws
• 14th Amendment: protection of property, life, and liberty

-property includes tangible and intangible items, such as jobs and reputations

• ex: laws must be clear

Why does it matter?

• adversary system of justice: assumes that when two opposing sides go against each other, justice will prevail
• because of this system, procedural fairness is very important

Substantive Due Process:

• Constitution usually prohibits some kinds of laws completely
• some rights are so necessary that government should hardly ever interfere - must have "compelling interest"
• courts determine whether fundamental rights are being broken
• evolving meaning of fund. rights

Rights not listed:

• right to marry whoever you want
• right to have kids
• have any kind of job

• to ensure justice
• made with the people in mind, not the government
• may be listed in Bill of Rights or Constitution
• necessary

What is due process?

• Magna Carta: "King John's thirteenth century promise to his noblemen that he would act only in accordance with law (“legality”) and that all would receive the ordinary processes (procedures) of law" - http://www.law.cornell.edu/wex/due_process
• government must follow established procedures, can't act unpredictably in negatively altering life, liberty, or property
• John Locke - this is the purpose of government
• Because beliefs change over time, due process is an evolving concept

Due Process

By: Kristi Tamberelli

What is due process?

What does it do?

Where is it in the Constitution?

What are the two types?

What does it do?

• 5th A- ensures our protections in Bill of Right, had no application on the states

"No person shall... be deprived of life, liberty, or property, without due process of law"

• 14th A, Section 1- Due Process Clause, incorporates the most important rights into state

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protecton of the laws."

... Therefore state and federal obligations are equal

Where is due process in the Constitution?

• 5th Amendment- limits national goverment
• some concerns are addressed separately: Article 1- ex post facto laws
• 14th Amendment- enforces due process on the states