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5th Amendment – Federal Due Process Clause – Explained

Cite this article as: Jason Mance Gordon, "5th Amendment – Federal Due Process Clause – Explained," in The Business Professor, updated January 2, 2015, last accessed April 2, 2020, https://thebusinessprofessor.com/knowledge-base/5th-amendment-federal-due-process-clause/.
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Due Process Protections - 5th Amendment
What is Due Process? The 5th Amendment of the US Constitution requires fundamental fairness and decency in the application of federal law.

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What is “Due Process” of Law?

Due Process rights assure “fundamental fairness and decency” in any governmental act or process that may affect the “life, liberty, property or other constitutional rights” of its citizens. The concept of due process is broken down into “substantive due process” and “procedural due process”. Substantive due process allows the court to safeguard the rights of individuals against infringement by the government. More specifically, it introduces a standard that laws that touch upon the fundamental rights of individuals may be outside of the authority of the government to regulate. This tends to protect a minority population from the unfair consequences of laws passed by the majority. Procedural due process stands for the principle that the government may not act in a manner that is “arbitrary, capricious, or unreasonable” when subjecting an individual to the laws of the state. Procedural due process further entails the observance of individual rights in the passage of laws and regulations. The government establishes certain standards for determining when a law may justifiably infringe upon an individual’s constitutional rights. That is, a law that infringes on a fundamental right must meet a certain standard (discussed further below) to be constitutional.

  • Note: The due process clause applies to both individuals and corporations.
  • Example: Procedural due process requires fair procedures in the carrying out of a criminal trial, such as the right to notice and the ability to respond to an accuser. It may also include the right to public vote or comment on a proposed law or regulation.

Discussion: Are you familiar with Miranda rights? How does the Miranda rights doctrine demonstrate principles of due process of law?

Discussion Input

  •  The Miranda rights doctrine, established in Miranda v Arizona, demonstrates the principles of due process law. Miranda warnings such as “you have the right to remain silent,” demonstrates the substantive due process which allows the suspect in custody to remain silent since they are at liberty act that way. This way the substantive due process safeguards the rights of individuals against infringement by the government. Remaining silent means one is safeguarding the admissibility of their statements. The fact that substantive due process introduces a standard that the fundamental rights of individuals are outside the government’s regulatory power demonstrates the Miranda rights. Furthermore, the procedural due process stands for the principle that the government may not act in a manner that is “arbitrary, capricious, or unreasonable” when subjecting an individual to the laws of the state. This demonstrates the Miranda right that allows a suspect to call for an attorney since they may not be very conversant with the law since its unreasonable for the police to interrogate suspects who don’t know their rights.

Practice Question: Jake wants to open a restaurant in his town. He purchases some land and begins the process of getting the necessary licenses and permits. There is a local board charged with determining whether to grant licenses for in-town businesses. The board does not believe the town needs another restaurant and denies Jake a license. Jake inquires about a process for appealing the board’s decision, but the code of ordinances does not allow for appeal from board decisions. If Jake files a lawsuit challenging the ordinance and the board’s process, what arguments might her raise against the board procedure?

Proposed Answer

  • One of the fundamental rights of Jake is that he has the right to due process. Due Process rights assure “fundamental fairness and decency” in any governmental act or process that may affect the “life, liberty, property or other constitutional rights” of its citizens. Jake is at liberty to open a restaurant anywhere in the town since he is a citizen. The standard for substantive due process is that the fundamental rights of an individual are outside the government’s power to regulate. Jake can attack the board’s procedure for not considering her substantive due process rights. This concerns the method by which the Government enforces the law against an individual. Generally, it concerns a situation where the procedural methods for enforcing a law are onerous and offer the subject individual little opportunity for procedural review, challenge, or redress. The government may not act in a manner that is “arbitrary, capricious, or unreasonable” when subjecting an individual to the laws of the state. In the scenario above, Jake could argue that the the board’s actions are unreasonable.

Academic Research

Green, Christopher R., Our Bipartisan Due Process Clause (September 14, 2018). George Mason Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3249845

Karlan, Pamela S., Pricking the Lines: The Due Process Clause, Punitive Damages and Criminal Punishment. Stanford Law School, Public Law Research Paper No. 46. Available at SSRN: https://ssrn.com/abstract=354704 or http://dx.doi.org/10.2139/ssrn.354704

Williams, Ryan, The One and Only Substantive Due Process Clause (March 6, 2010). Yale Law Journal, Vol. 120, 2010. Available at SSRN: https://ssrn.com/abstract=1577342

Smith, Eric Steven, Due Process Implications Related to State Notice and Economic Nexus Laws (Summer 2017). Tax Lawyer, Vol. 70, No. 4, 2017. Available at SSRN: https://ssrn.com/abstract=3090667

Enriquez, Anthony, Structural Due Process in Immigration Detention (March 22, 2018). CUNY Law Review, 2018 Forthcoming. Available at SSRN: https://ssrn.com/abstract=3147114

Smith, Eric Steven, The PACT Act as Indicium of the Due Process Validity of the Marketplace Fairness Act (March 28, 2016). Florida Tax Review, Vol. 19, No. 1, 2016. Available at SSRN: https://ssrn.com/abstract=2755772

Penalver, Eduardo Moises and Strahilevitz, Lior, Judicial Takings or Due Process? (March 21, 2011). Cornell Law Review, Vol. 97, 2012; Cornell Law School Legal Studies Research Paper No. 11-08; U of Chicago Law & Economics, Olin Working Paper No. 549. Available at SSRN: https://ssrn.com/abstract=1791849

Spektor, Andrey and Zuckerman, Michael A., Judicial Recusals & Evolving Notions of Due Process (March 3, 2010). University of Pennsylvania Journal of Constitutional Law, Vol. 13. Available at SSRN: https://ssrn.com/abstract=1564385 or http://dx.doi.org/10.2139/ssrn.1564385

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