ORIGIN OF DUE PROCESS : 1 ORIGIN OF DUE PROCESS Constitution of the United States – the fifth and fourteenth amendment.
Both amendments provide among other things that no person shall be deprived of life, liberty or property with due process of law.
The Fifth Amendment restrains the power of the federal government, while the fourteenth amendment restrains the power of individual states.
DUE PROCESS : 2 DUE PROCESS Substantial Due Process
Procedural Due Process
SUBSTANTIVE DUE PROCESS : 3 SUBSTANTIVE DUE PROCESS The concept of substantive due process prevents government from taking away basic freedoms that although not explicitly stated in the constitution are nonetheless protected by it.
SUBSTANTIVE DUE PROCESS : 4 SUBSTANTIVE DUE PROCESS Examples of substantive due process: The judicial recognition of the right of the parents to direct the upbringing and education of their children.
The right to bodily integrity that is freedom from physical abuse at the hands of the government.
SUBSTANTIVE DUE PROCESS : 5 SUBSTANTIVE DUE PROCESS The concept of substantive due process also prevents government from exceeding its scope of authority and from acting arbitrarily and capriciously, that is without rational grounds for its action..
SUBSTANTIVE DUE PROCESS : 6 SUBSTANTIVE DUE PROCESS For example if a public school acted to deprive a student of the opportunity to participate in a field trip or extracurricular activity without reasonable or rational basis for doing so, it would be violating substantive due process.
PROCEDURAL DUE PROCESS : 7 PROCEDURAL DUE PROCESS This requires that fair procedures be employed in restricting someone’s right to life, liberty or property. In the US an individual’s right to life, liberty and property is not absolute, restrictions are placed on the exercise of these personal rights so that the rights of the community as a whole may be protected.
PROCEDURAL DUE PROCESS : 8 PROCEDURAL DUE PROCESS In restricting one’s right to life, liberty and property, federal and state governments are not allowed to operate in a manner unrestrained by law.
PROCEDURAL DUE PROCESS : 9 PROCEDURAL DUE PROCESS What does Due Process mean?
Bottom Line : Certain procedures are owed to persons protected by the United States legal system before those rights can be seriously abridged.
PROCEDURAL DUE PROCESS : 10 PROCEDURAL DUE PROCESS What process is due?
The basic elements of procedural due process are:
Notice- informing the person of the contemplated governmental action to restrict one’s life, liberty or property and the reason for the action.
PROCEDURAL DUE PROCESS : 11 PROCEDURAL DUE PROCESS A chance to respond – that is allowing the person to tell his or her side of the story or some kind of a hearing, informal or formal.. The less serious the contemplated action against the person, the more informal the procedures. When more is at stake more extensive procedures are required.