Many rights are enshrined in the United States Constitution that Americans hold dear. One is the time-honored right to due process under the law..
Why this particular right?
Because it’s a right that can easily be taken by the government, especially through its criminal justice system.
Recently, cases have made the news that demonstrates just how tenuous the right to due process can be.
In Kentucky, the family of Breonna Taylor is requesting a review of the handling of Breonna’s case by the police, especially since she was effectively denied due process by the police when they killed her.
And here in Texas, a nurse recently won her case against state agencies sending misleading information about processes in the courts, something that effectively blocked her from exercising her right to due process.
So what exactly is due process and why does it matter so much? More importantly, how can you ensure your right isn’t being violated? Read on to find out.
Due Process: What Is It?
The Constitution of the United States guarantees its citizens certain rights. The Fifth Amendment is the father of the due process concept—one of the original Bill of Rights known as “substantive due process of law. The Fourteenth Amendment made the original Bill of Right applicable to the states, and spawned what is now known as “procedural due process of law.”
Due process, at both the federal and state level, safeguards individuals from government actions—criminal, civil, or administrative.
Essentially both due process clauses in the Constitution prohibit either state or federal governments from depriving someone of the right to life, property, and freedom without affording them due process under the law.
Basically, these provisions guarantee citizens fair treatment in the judicial system. The 5th Amendment specifically prohibits federal government violations while the 14th Amendment prohibits states from violating this right.
Substantive Due Process and Procedural Due Process
The clauses in the Constitution describing due process address two different concepts: substantive due process and procedural due process. Learn more about each below.
Substantive Due Process
Substantive due process works to ensure people will enjoy fundamental rights provided by the Constitution and to be fairly treated by the government. This is why the 14th Amendment is often referred to as the Equal Protection Clause.
It is applied most often in cases regarded as addressing new laws. If laws have an unfair impact on some individuals or groups, then it can cause people to bring a due process claim against it.
Procedural Due Process
This type of due process, on the other hand, works to ensure that the government implements precautions before taking action that can deprive someone of their rights.
In practice, this is something such as notice that you have a date in court you must attend for a trial or hearing.
What If Your Right to Due Process is Violated?
If you feel your due process right has been violated, then it should be brought to the attention of the court through your attorney.
The courts will then determine if your due process has been violated and if they find that it has been, they will void or overturn the actions that violated your right to due process.
Then, if additional charges or another lawsuit is brought against you after that, then it will adhere to the requirements of due process.
It’s important to keep in mind that only a government entity can violate your due process. If your neighbor does something such as cut down a tree on your property without giving you notice, then that is not a violation of your due process – even if they did destroy your property (save this type of case for civil claims).
Otherwise, due process is your constitutional right, so don’t let it slip through your fingers. Take action if you have been deprived of it.