Due Process

Question 1

What do the Due Process clauses of the 5th and 14th Amendments require?

Answer 1

That the government not take a person’s life, liberty, or property without sufficient process and without having a sufficient purpose in doing so.

Question 2

What is procedural due process?

Answer 2

The right to sufficient procedures before the loss of life, liberty, or property.

Question 3

What is a liberty interest?

Answer 3

Liberty interests are implicated if a person loses a significant freedom of action or is denied a freedom provided by the Constitution, including the freedom to

1. Move without restraint
2. Enter into contracts
3. Engage in gainful employment

Question 4

What does substantive due process require?

Answer 4

If the state is going to affect a fundamental right (the right to travel, privacy, vote, and to speak freely), the rule will only be upheld if the government can prove the rule is necessary to promote a compelling interest.

If the state is going to deprive a person of a non-fundamental right, the challenger must show that the state action is not reasonably related to a legitimate state purpose.

Question 5

What levels of scrutiny apply to substantive due process?

Answer 5

Strict scrutiny for fundamental rights and rational basis review for everything else.