The Constitution guarantees certain rights to the citizens of this country. The 5th and 14th Amendments of the Constitutions contain due process statements about what the government—federal and state—can and cannot do to its citizens.

For example, both clauses prohibit the government from depriving its citizens of the right to life, freedom and property. Whereas the 5th Amendment prohibits the federal government from doing so, the 14th Amendment prohibits the states.

The 5th Amendment is most commonly used in criminal cases where defendants can decline to testify against themselves. This is often referred to as “pleading the Fifth.” It also prohibits a person from being tried twice for the same crime (double jeopardy).

The 14th Amendment is frequently implicated when states pass laws that negatively impact their citizens’ constitutional rights, for example, the rights to vote, marry or enjoy freedom of speech.

How is Substantive Different from Procedural Due Process?

Heavily litigated in both federal and state courts, these clauses describe the due process guaranteed under the Constitution as substantive and procedural in nature.In a nutshell, substantive due process guarantees that people will continue to enjoy certain fundamental rights and to be fairly treated by the government. As a result, the 14th Amendment is sometimes referred to as the Equal Protection Clause.

Procedural due process provides that the government must implement certain timely precautions before taking actions that may deprive the people of their substantive rights. These precautions may include notice of the intended action or a hearing or a trial.

How is Substantive Due Process Applied?

Substantive due process often comes up when a new law is being applied. If a law has an unfair impact on certain groups of people or individuals, it may give rise to a due process claim. For instance, your state decides to pass a law requiring that a voter must present three pieces of identification in order to vote.

The right to vote is a guaranteed right and there is no question that there is government action here. Whether or not a due process violation has occurred will require a level of scrutiny by the court based on the right at issue and the government’s interest.

If the government were to argue that identification is required to prevent voter fraud, a court may find this is sufficient interest to uphold the law. However, the court may also consider that the requirement of three pieces of identification—as opposed to just one—may be less compelling.

In another example, a state passes a law prohibiting its students from being taught a foreign language in school. The state argues that it wants to make sure its students learn English. The court will scrutinize the state’s interest in determining whether the law violates substantive due process or not. The court will balance the state’s interest against the liberty of the parents in directing the education of their children.  

How is Procedural Due Process Applied?

Procedural due process concerns what safeguards are implemented before a citizen may be deprived of their rights to life, liberty, and property by the government. For example, a state decides to pass a law requiring the detention indefinitely of any adult in mental distress--without notice or hearing--even in the absence of an emergency. Under these facts, a court is likely to conclude that the government has violated the adult detainee’s right to be free from government interference without some due process.

Sue is a student at a local public school who is suspended by the principal for smoking in the bathroom. Her parents challenge her suspension because the school failed to provide Sue with an opportunity to be heard before she was suspended. Her parents argue that Sue has an interest in continuing her education, which she is now unable to do because she didn’t get a chance to be heard.

The school argues that it has an interest in protecting its students from being subjected to second-hand smoking and in ensuring that fire safety procedures are observed. Clearly, both parties have a strong interest in what happened and the court will have to consider the burden to the school in providing the notice.

In each of the above example, the court will apply a balancing test to determine whether there was a procedural due process violation. The court will look at the importance of the plaintiff’s and the state’s interest, the value of adding procedural safeguards, and the burden to the state to impose the procedural safeguards. The more important the interest, the more likely the courts will find procedural safeguards are required to limit the deprivation.

What Happens If My Due Process Has Been Violated?

If it has been determined, by a court of law, that your due process has been violated then it is very likely that the ruling that violated it will be overturned or struck void. Then, there is a chance for the lawsuit to be brought again, depending on the circumstances, but this time they will strictly adhere to due process requirements.

Remember, your due process can only be violated by a government entity. If your neighbor did not give you enough notice (or any notice) before cutting down your tree, then they are not guilty of violating your due process. Instead, they would be guilty of destroying your property or any other relevant civil, personal injury claim.

Should I Consult a Lawyer If My Due Process Has Been Violated?

Whether or not you have a substantive or procedural due process violation can sometimes be difficult to establish. To ensure your rights are protected, you should consult a local government attorney.