Good Example Of Research Paper On Procedural And Substantive Due Process

INTRODUCTION

The term ‘due process’ is mentioned twice in the US Constitution: first in the Fifth Amendment and second, in the Fourteenth Amendment. The 5th Amendment states in part that “No person shall be deprived of life, liberty or property, without due process of law.” This principle is echoed in the 14th Amendment, which states in part “ nor shall any State deprive any person of life, liberty, or property, without due process of law.” While the 5th Amendment is directed to the federal government, the 14th Amendment is specifically directed to the States, making due process an obligation by both the federal government and the States. It is submitted that the due process clause referred to in said Amendments refer to procedural due process. The Supreme Court developed the concept of substantive due process and tied it to the idea of the Constitutional due process beginning in the mid-19th century. The objective of this paper is to compare and distinguish procedural due process and substantive due process. Moreover, it is also aimed at determining the exact nature of deprivation or taking that is requisite to the operation of the due process principle, and the process or procedure due when the deprivation falls squarely within the meaning of the Constitution.

COMPARISON: PROCEDURAL AND SUBSTANTIVE DUE PROCESS

The term ‘due process’ is originally associated with procedural matters because of the inclusion of the word ‘procedure’ and the term is, thus, often used to refer to procedural due process. The procedural due process clause incorporated in the Constitution through the 5th and the 14th Amendments serves as a protection for citizens from government actions that seek to deprive them of their life, liberty and property. Such a protection is in the form of processes that are characterized by standards of fairness. The guarantee of procedural due process implies that the government, federal or state, cannot just arbitrarily and capriciously deprive any person of his or her life, liberty or property, but it must go through a process or procedure that is applied upon the execution of the law, especially during judicial proceedings (Balin 292). The question to be asked in procedural due process is: Did the government follow the correct procedure (Chemerinsky 1501)?
Substantive due process, on the other hand asks the question: Is the act of the government in depriving the life, liberty or property of a person, being justified by a sufficient purpose (Chemerinsky 1501)? Matters like the right to privacy, the right to abortion, which are not specifically named in the Constitution, can be embraced in the general concept of substantive rights (Strauss n.p). It was the courts that introduced and recognized the concept of substantive due process as inherently implied in the Constitution beginning with the cases of Dredd Scott v. Sandford, 60 US 393 (1857) and Mugler v Kansas, 123 U.S. 623 (1887). In the infamous case of Dredd Scott, the Court held that Congress cannot pass a law that prohibits a man from owning a slave because it would violate his substantive right to property. In Mugler, the Court held that courts have the power to examine, on the basis of substantive due process, whether a law passed by the legislature is reasonably related to a legitimate purpose. The purpose of substantive due process, therefore, is to prevent the government from exercising its power in an arbitrary and oppressive manner so as to violate the fundamental rights of citizens (Balin 292).
The primary difference between procedural due process and substantive due process, therefore, is that the former looks at the correctness of the process taken by the government in depriving a person of his or her life, liberty or property, while the latter stresses the sufficiency of the justification in the deprivation of life, liberty or property.

DEPRIVATION AND PROCESS DUE

As earlier implied, the government is not entirely prohibited from taking the life, liberty and property of a person. It must, however, abide by the principles of fairness in the process of taking or depriving. When the deprivation does not involve life, liberty or property, the due process principle under the 5th and the 14th Amendments need not apply (Emanuel and Salazar 77).
The requirement of due process applies to the federal government, in accordance with the 5th Amendment, and the state, in accordance with the 14th Amendment. It does not, thus, apply to private entities in the exercise of their power over others. Aside from the authority exercising the power to deprive, it is also important to correctly distinguish whether the object of deprivation is a right or merely a privilege. This is especially important when the matter in issue is the deprivation of property because a person’s interest over a property may be a right or a privilege only (Strauss n.p). The deprivation of life and liberty are mainly governed by criminal law and the procedures enshrined in the Constitution to make the ‘taking’ or deprivation fair and due. However, the issue of property is more complicated. For example, an applicant for a job in the federal government cannot demand that the latter follow certain procedural fairness, such as hearing and explanation for rejection of the application, because no life, liberty or property rights of the applicant are involved. However, once a person has held the job, a determination must be made by examining laws if such a person has already a property interest in the job (Emanuel and Salazar 79). In such a case, the government cannot just simply deprive him of his job, but must establish fair and just procedure for his termination. Also, in many states a driver’s license is considered a property interest and its revocation must, hence, be done with fairness by adopting the correct procedure (Miller and Jentz 19). In Matthews v. Eldridge, 424 US 319 (1976), the US Supreme Court held that a person has property interest in Social Security benefits. Likewise, in Goldberg v. Kelly, 397 U.S. 254 (1970), the Court held that benefits from a state-administered welfare program was so important to the plaintiffs that suspending prior to a full hearing to justify final termination constituted a deprivation. Therefore, the Court ruled that the hearing must come before any suspension or termination of the benefits must be imposed.
When the object being deprived is a right, process is due, but when it involves only a privilege, the principle of due process is not strictly applied. The distinction between these terms may not be clear at times so the solution is to look at the effect of a government action on the individual to determine whether process is due. If the government action is such that its effect on the individual being deprived is so severe, it is likely that process is due. Otherwise, the principle does not apply and the government is free to do as it pleases (Strauss n.p).
Finally, the question that must be asked is what procedures are due to prevent the deprivation or taking of life, liberty or property without due process. In the Matthews case mentioned above, the Court established the balancing test to ensure that a person is not denied of his right to life, liberty and property without due process. In other words, the case attempts to resolve the question of how much due process is required so as not to amount to a deprivation without due process. The three-part balancing test consists of the following: determining the importance of the private interest; estimating the risk of erroneous deprivation due to insufficiency procedural protections, and; the government interest. The case involves the termination of Social Security benefits, which the beneficiary objected to because of the lack of evidentiary hearing before termination. The plaintiff brought an action in court on the grounds that his right to due process under the Constitution was violated. In applying the three-part balancing test, the Court made the following findings: the Social Security benefit was an important private interest to the plaintiff because he was dependent on it for his daily subsistence; the administrative procedure in place for the termination of SS benefits did not deprive the plaintiff of due process because he had other means of objecting to the termination, except that he did not choose to avail of them, and; the government interest includes the lessening of administrative burden so that if the cost of additional administrative procedures is more than the resulting benefits, then additional measures need not be resorted to (Matthews v. Eldridge, 424 US 319 (1976).

CONCLUSION

The terms ‘procedural’ and ‘substantive’ due process are distinguished from each other by the nature of the purpose of the constitutional protection and the required action on the part of the government involved. If the purpose of the constitutional guarantee is to prevent the government from arbitrarily depriving an individual of his life, liberty and property and for that purpose requires that the government follows a fair procedure to determine whether deprivation is proper, then this defines procedural due process. On the other hand, if the constitutional protection is to prevent the government from violating the basic rights of a person through the arbitrary exercise of its power and for that purpose requires the determination whether the government purpose for its action is legitimate and the action itself is necessary to achieve that purpose then substantive due process is being defined. Finally, the proper application of the due process principle entails the correct appreciation of the terms ‘deprivation,’ the depriving authority, the determination of the extent and the nature of the process necessary to prevent the violation of the due process clause.

Works Cited

Balin, Marianne. Anticipative Criminal Investigation: Theory and Counterterrorism Practice in the Netherlands and the United States. 2012. Springer Science & Business Media. Print.
Chemerinsky, Erwin. Substantive Due Process. Touro Law Review, vol. 15, 1999, pp. 1501- 1534. Print.
Dredd Scott v. Sandford, 60 US 393 (1857).
Emanuel, Steven and Salazar, Lazar. Constitutional Law.7th ed. 2008. Aspen Publishers. Print.
Goldberg v. Kelly, 397 U.S. 254 (1970).
Matthews v. Eldridge, 424 US 319 (1976).
Miller, Roger and Jentz, Gaylord. Cengage Advantage Books: Fundamentals of Business Law: Excerpted Cases. 2009. Cengage Learning. Print.
Mugler v Kansas, 123 U.S. 623 (1887).
Strauss, Peter. Due Process. Legal Information Institute, Cornell University Law School. n.d. Web. Retrieved from http://www.law.cornell.edu/wex/due_process.
The US Constitution.