Due Process of Law and Procedure

Jack Woerner, Kat Kadian-Baumeyer
  • Author
    Jack Woerner

    BA in Political Science with Emphasis on Social Studies Education at Brevard College, 6 years experience (2 years online) teaching Economics, Personal Finance, APUS Government and more. Certified Gifted/Talented Teacher.

  • Instructor
    Kat Kadian-Baumeyer

    Kat has a Master of Science in Organizational Leadership and Management and teaches Business courses.

Find out about what is "due process" and where the due process amendment is in the Constitution. See due process examples, procedural due process and types of due process. Updated: 11/26/2021

Table of Contents


What is Due Process?

Due process is a Constitutional foundation in which legal matters must be fair and be based on a principle of rules and procedures. Due process of law means that a legal matter must be resolved according to fair and just law. In the U.S. Constitution, the Due Process Clause has expanded over time but mostly protects these rights: procedural due process, individual rights listed in the Bill of Rights, and substantive due process. The Due Process Clause guarantees civil rights as interpreted from the Bill of Rights. In numerous cases, for example, due process was used to defend the following rights that they be incorporated into every state in the United States: the right to an impartial jury, free expression of religion, and freedom of the press.

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  • 2:57 The 5th and 14th Amendments
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Due Process Amendments

Due process is in the 14th Amendment in the Constitution and it guarantees due process to be observed in legal matters in the United States. The Due Process Amendment solidifies all rights given in the Bill of Rights and makes sure they are protected in every state in the United States. The primary rights in which the Due Process Amendment protects are known as the "Rights of the Accused" and are the 4th, 5th, 6th, 7th, and 8th amendments in the Bill of Rights:

  • 4th Amendment: Illegal searches and seizures.
  • 5th Amendment: Right to a jury, prohibits double jeopardy, protects against self-incrimination, protects against government encroachment of "life, liberty, and property."
  • 6th Amendment: Right to a public trial, right to an attorney, right to an impartial jury, right to confront witnesses.
  • 7th Amendment: Right to a jury in civil trial.
  • 8th Amendment: No cruel and unusual punishments, no excessive fines or bail.

One of the most common 5th and 14th Amendment cases are highway or state road expansion cases according to eminent domain power the government has. The government must provide notice before expanding roads and must provide just compensation.

Highways and Eminent Domain Cases

Types of Due Process

There are three different types of due process found in the U.S. justice system. procedural due process, "Incorporation" of the Bill of Rights, and substantive due process. These are all mentioned in the Constitution but have been expanded on, interpreted, and adapted over time by various Supreme Court rulings for better understanding.

Procedural Due Process

The procedural due process definition is that if a citizen is to be deprived of "life, liberty, or property" by the government in a legal proceeding, that citizen must be given a chance to be heard or given notice in a court of law. The decision or ruling must be delivered by a neutral third party in the case. The following list is not an exhaustive list of what the government must do to give notice in a legal procedure, but outlines a procedural due process example:

  • Citizen is given an opportunity to be represented by an attorney of the law.
  • Right to produce evidence and witnesses.
  • A fair and just hearing or tribunal must occur, with recordings of all evidence, testimony, and other legal records produced.
  • A notice must be delivered to the citizen with a list of the legal matters being presented in the trial.

Incorporation of the Bill of Rights Against the States

The Bill of Rights at one point in U.S. history only applied to the federal government and states that honored the system. It has taken decades of lawsuits and court hearings to gradually "incorporate" the Bill of Rights against the states. The incorporation of the Bill of Rights Against the states means that the rights granted to individuals in the Bill of Rights must be honored, protected, and upheld in every state. Anytime an individual is deprived of a Constitutional right, whether it be in a legal matter or in conflict with state law, the federal courts can overturn the issue because of the Supremacy Clause and the Due Incorporation Clause of the Constitution. State law cannot infringe on the rights of citizens guaranteed in the Bill of Rights and state law is inferior to the Constitution.

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Frequently Asked Questions

What is an example of due process?

An example of due process is when a citizen is being arrested for a crime, they must be given notice of this crime, when the court case will be held, and given the right to an attorney.

What is the legal definition of due process?

The legal definition of due process is a citizen must be given the equal treatment of the law in a legal proceeding and their rights must be protected in any case.

What are the three types of due process rights?

Three types of due process are procedural (right to have a fair and just legal proceeding, incorporation (Bill of Rights protection extends to states), and substantive (rights outside of legal proceedings must also be protected).

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