Procedural Due Process

Procedural Due Process in the United States

A procedural review that focuses on the means by which governmental actions are executed. Procedural due process guarantees fairness in the ways that government imposes restrictions and punishments. It demands that before any deprivation of liberty or property can occur, a person must be formally notified and provided an opportunity for a fair hearing. Procedural due process differs from substantive due process. The former focuses on how government should function while the latter stresses what government can reasonably do.

See Also

Due Process of Law (Judicial Function) Substantive Due Process (Judicial Function).

Analysis and Relevance

Procedural due process must be accorded persons accused of crimes. It includes access to legal counsel, the ability to confront witnesses, and a trial by jury. Procedural due process also applies to regulation of property. Constitutional protection against loss of liberty or property is guaranteed in two constitutional amendments: the Fifth, which is directed at the federal government, and the Fourteenth, which is directed at the states. When the Court was first asked to use the Due Process Clause of the Fourteenth Amendment to invalidate state economic regulatory initiatives, it adopted a largely procedural approach. In the Slaughterhouse Cases (16 Wallace 36: 1873), for example, the Court refused to examine the reasonableness of a state-granted slaughterhouse monopoly. This approach was also seen in Munn v. Illinois (94 U.S. 113: 1877), where the Court allowed a state rate regulation on businesses “affected with a public interest.” Within a decade of Munn, the Court embraced the substantive due process approach and found most economic regulations to be unreasonable and therefore unconstitutional. Substantive due process eventually fell into decline beginning with such post-Depression decisions as Nebbia v. New York (291 U.S. 502: 1934) and West Coast Hotel v. Parrish (300 U.S. 379: 1937), and the Court essentially abandoned the substantive due process approach with respect to commercial regulations.

Notes and References

  1. Definition of Procedural Due Process from the American Law Dictionary, 1991, California

Procedural Due Process: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Procedural Due Process. This part provides references, in relation to Procedural Due Process, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Procedural Due Process by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Procedural Due Process and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Procedural Due Process or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Procedural Due Process and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Procedural Due Process. Finding these decisions can be challenging. In many cases, researchers about Procedural Due Process should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Procedural Due Process when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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