Due Process

Question 1

PROCEDURAL DUE PROCESS

Answer 1

The Due Process Clauses of the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states) provide that a person has a right to a fair process when the government deprives the person of life, liberty, or property.

Question 2

Liberty

Answer 2

The term “liberty” is not specifically defined in the Constitution. However, it has been held to include more than just physical freedom

Question 3

Property

Answer 3

“Property” includes not only personal and real property (whether it’s tangible or intangible), but also government benefits to which there is an entitlement (that is, a reasonable expectation of continued receipt) under state or federal law.

Question 4

Procedural due process requires:

Answer 4

*Notice
*An opportunity to be heard AND
*A neutral decisionmaker

Question 5

DUE PROCESS RIGHTS ARE SUBJECT TO WAIVER

Answer 5

As a general rule, due process rights are, presumably, subject to waiver if the waiver is voluntary and made knowingly

Question 6

Substantive due process

Answer 6

Substantive due process guarantees that laws will be reasonable and not arbitrary. Substantive due process derives from the Due Process Clause of the Fifth Amendment, which applies to the federal government, and the Due Process Clause of the Fourteenth Amendment, which applies to state and local governments.

Question 7

SDP APPLICABLE STANDARDS

Answer 7

When a fundamental right is limited, the law or action is evaluated under the strict scrutiny standard. In all other cases, the rational basis standard generally applies