Procedural & Substantive Due Process

Question 1

Source of Procedural Due Process

Answer 1

The Fifth Amendment Due Process Clause applied to the federal government.

The Fourteenth Amendment due process clause applied to states and localities.

Question 2

Was there a deprivation of life, liberty, or property?

Answer 2

Liberty: Physical freedom (from institutionalization, deportation, etc.) and parental rights.

Property: Real and personal whether tangible or intangible. Also applies to a government entitlement to which an individual has a reasonable expectation of continued receipt.

Question 3

If there is a deprivation, what process is due?

Answer 3

Notice that is reasonably calculated to inform the person of the deprivation.

An opportunity to be heard. Generally, pre-deprivation is preferred unless impractical. The court will look at the importance of the interest to the individual, the risk of error through the procedures used, the accuracy

Neutral Decision-Maker

Question 4

Should you apply due process or equal protection?

Answer 4

If they are denying everyone a fundamental right, use substantive due process only.

If they are denying a small group a fundamental right, apply substantive due process and equal protection.