Due Process

Due process is one of the most important concepts in constitutional law, appearing in both the Fifth Amendment (limiting the federal government) and the Fourteenth Amendment (limiting state governments). It has two distinct components: procedural due process and substantive due process.

Procedural due process requires that the government provide fair procedures before depriving a person of life, liberty, or property. The threshold question is whether a protected interest exists — property interests typically arise from existing rules or understandings, while liberty interests include both physical freedom and other protected interests. Once a protected interest is identified, the court applies the Mathews v. Eldridge balancing test, weighing: (1) the private interest affected; (2) the risk of erroneous deprivation and the value of additional safeguards; and (3) the government's interest, including the administrative burden.

Substantive due process protects fundamental rights from government interference regardless of the procedures used. When a fundamental right is at stake, courts apply strict scrutiny — the government must show the law is narrowly tailored to serve a compelling interest. Fundamental rights include the right to marry (Loving v. Virginia, Obergefell v. Hodges), the right to privacy and bodily autonomy (Roe v. Wade, Griswold v. Connecticut), the right to raise children (Troxel v. Granville), and the right to intimate association (Lawrence v. Texas).

The Lochner era represents a cautionary tale about substantive due process: the Court struck down economic regulations as violating "liberty of contract," a period now viewed as improperly substituting judicial policy preferences for legislative choices.