US Constitutional Law: Due Process of Law

United States Due Process of Law

Due Process of Law. The Due Process clauses of the constitution are very significant clauses of law under our legal system. Your rights to life, liberty, and property are governed by the due process clauses under the constitution. There are 2 due process clauses under the constitution each granting different due processes under the law. The Due process clause of the 5th amendment and the due process clause under the 14th amendment. Is life, liberty, or property being taken? If so, there are due process of law considerations. Moreover, there is some crossover into equal protection analysis.The 2 are not mutually exclsuive. When considering due process of law considerations, the reviewer should consider substantive due process and procedural due process. What standards of due process are required for individuals various vested rights in life, liberty, or property? How are these balanced with the interests of the government.

 

Procedural Due Process: What type of process is required procedurally? Different levels of due process apply to various areas of life, liberty or property being taken. There are a variety of remedies available for due process considerations (e.g. Welfare benefits, disability benefits, creditor's remeideis, access to courts, civil forfietures, punative damages, and so forth.

 

A. Is there a depravation of life, liberty or property?

B. What process is due?

 

1. Notice

2. Hearing

Under Mathews the court balanced the (a) private Interests (b) public interests (c) the risks of error and the likelihood it could be reduced.

3. Burden of Proof

4. Attorney - Is an attorney required when a depravation of life, liberty, or property has occured? What process is due?

5. Impartial fact finder

6. Freedom from arbitrary application of law

7. Appeals

8. Timely Relief

 

Substantive Due Process: What type of process is required substantively? Has there been a depravation of life,liberty, or property? Do we apply the rational basis test? With fundamental rights strict scrutiny is required.

 

In addition to substantive due process issues the following legal issues may be applicable.

 

Privileges and Immunities

Eminent Domain: Takings Clause (5th Amendment)

Negative Commerce Clause

read more..

 

 

US Government



Vincent J. Russo, PC
5030 Campus Drive
Newport Beach, CA 92660

949-474-7799


Magna Carta Constitutional Law long term implications (US case law & Precedent).