You may hear the phrase “due process” in the media every time a prominent criminal case makes the news, but where does it come from and what does it really mean?

Where is due process located?

Due process is a constitutional principle that our government must follow before it can seize a person’s liberty or property. The Fifth Amendment establishes that “no person shall be subjected to the same crime with two guarantees of due process from the federal government, indicating that no person shall be” deprived of life, liberty or property, without due process of law. ” they are required to provide due process because the 14th Amendment states that “no state shall deprive any person of life, liberty, or property without due process of law.”

What is due process?

A simple definition means that due process requires notice and the opportunity to be heard before adverse action is taken against you. In criminal cases, examples of due process include the need for probable cause to arrest someone and that a criminal defendant is presumed innocent until an impartial judge or jury proves guilty. Due process does not only exist in a criminal trial, as long as a person’s property interest can be taken, due process protections also apply.

The courts have ruled that possessions, such as a government-issued license and even civil service jobs, are property, which can only be revoked after a hearing. A quasi-governmental organization such as a homeowners association is also subject to due process requirements. If a homeowners association wants to fine a resident for statutory violations, such as excessive noise or because the paint on their house is the wrong color, a hearing must first be held in which the resident is given an opportunity to be heard.

Fundamental rights

In addition to the “due process” rights described above, which govern how the government should act, the constitution also guarantees “substantive due process” rights. While substantive due process is sometimes a difficult concept, it basically means that there are certain rights that we consider so fundamental in our society that laws that attempt to restrict them can be considered unconstitutional. These “substantive rights” are considered so fundamental that they are protected even if they are not explicitly mentioned in the Constitution. Even if due process is followed when promulgating and enforcing the law, a substantive right “vetoes” the law.

Right to privacy

The federal Constitution does not contain the right to privacy, but the courts have ruled that it exists. Our substantive due process right to privacy is why the Supreme Court has prohibited the federal and state governments from enacting laws that completely restrict an adult’s choice to have an abortion, purchase contraception, or have consensual sex. The substantive due process right to marry has formed the basis for repealing laws prohibiting interracial marriage across the country and gay marriage in Massachusetts. In Goodridge v. The Massachusetts Department of Public Health, the state Supreme Court, ruled that excluding gay couples from marriage “is inconsistent with the constitutional principles of respect for individual autonomy and equality before the law.”

There are many variations and applications of due process. Yet at the core is something we can all relate to: Due process embodies the notion that there are certain basic rights and fundamental freedoms that we enjoy as individuals within our society, whether or not they are explicitly stated.