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5th Amendment Federal Due Process Clause

19. 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?

•    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?

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