You’ve probably been reading and seeing a lot of media stories about “due process” lately. Just what is due process, what does it involve and how does it help protect people’s legal rights?
The concept of due process goes back to the U.S. Constitution. The “Due Process Clause” of the Fourteenth Amendment states that the government can’t deprive “any person of life, liberty, or property, without due process of law.” The U.S. Supreme Court (SCOTUS) has expanded over the years on just what that means.
Procedural due process
There are two types of due process. The one that most people are familiar with and that applies to people’s rights when they’re accused of a crime is procedural due process.
Under the law, a person who has been accused of a crime is entitled to the following:
- Notice: A person must be told what offense they’re accused of and what their basic rights are. This includes being given the “Miranda warning.”
- Opportunity to be heard: This includes the right to present a defense.
- An impartial tribunal: People have the right to have their case decided by a jury.
Some of these rights are included in other portions of the Constitution.
Substantive due process
Over the years — particularly in the last century — SCOTUS has made rulings giving Americans “unenumerated” rights not specifically addressed in the Constitution. These rights involve what’s known as “substantive due process.” Many Americans take these rights for granted, even though they didn’t exist for previous generations and can be taken away with another SCOTUS ruling.
Among the rights that states cannot deny their residents thanks to SCOTUS are:
- The right to contraception
- The right to marry someone of another race
- The right to marry someone of the same gender
The right to have an abortion was codified under Roe v. Wade. As most everyone knows, a later SCOTUS overturned that ruling, allowing states to prohibit abortion.
It’s important for everyone to understand all of their due process rights. It’s even more important to ensure that those rights are protected and you may want legal guidance if you feel your rights have been breached.