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

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