Due Process

Due Process

a. Procedural Due Process
1. i. Procedural Due Process refers to the procedures that government must follow when it takes away a person’s life, liberty or property
2. ii. It is about what kind of notice a person must get before their life, liberty or property are taken away by the government
3. iii. If someone wants better procedures, more notice or better hearing, then you use Procedural Due Process
b. Substantive Due Process
1. i. Asks whether the government has an adequate reason for taking away a person’s life, liberty or property
2. iii. Define the issue
3. ii. Is there a sufficient substantive justification for the government’s action
4. iv. Determine the law’s purpose and how well the law fits the end sought
5. v. Is this a fundamental right based on history and tradition?
  1. 2. If it is not a fundamental right based on history and tradition or if there has not been a significant infringement of the fundamental right, then it is a Garden Variety Liberty Interest, and apply rational basis
    1. a. Is there a legitimate state interest?
    2. b. Is the law rationally related?
  2. 1. If yes, is there a significant infringement of the fundamental right?
    1. a. If yes to both questions, then apply strict scrutiny
      1. i. Is there a compelling state interest?
      2. ii. Is the law narrowly tailored?
6. vi. If someone wants a law struck down or a government action struck down because it violates their rights without enough justification then you use Substantive Due Process
c. Equal Protection
1. i. Focuses on whether the government’s differences in the treatment of people are justified by an adequate purpose
2. ii. If someone is being unjustly discriminated against relative to others similarly situated then you use Equal Protection
d. i.e. The Supreme Court has said that parents have a fundamental right to custody of their children
1. i. Procedural Due Process requires that there be adequate procedures (notice and a hearing)
2. ii. Substantive Due Process requires that there be a compelling justification (i.e. parental abuse or neglect)
3. iii. Equal Protection requires that all parents similarly situated be treated the same

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