LESSON: DUE PROCESS Adv. Con Law David Dalition

1. Provide a very brief (one sentence) introduction to the Due Process Clause. The Fourteenth

Amendment provides that “no state shall make or enforce any law which shall… deprive any

person of life, liberty, or property, without due process of law…” In short, this is the Fourteenth

Amendment’s Due Process Clause.                      

 

2. How does the 14th amendment related to the Bill of Rights? The Fourteenth Amendment’s

Due Process Clause is the vehicle by which the Supreme Court has incorporated the Bill of

Rights (the first ten amendments) and made them applicable to the individual states.

3. How might one describe the primary function of the 14th Amendment’s Due Process Clause?

One might describe the primary function of the 14th Amendment’s Due Process Clause as the

requirement that the state act with procedures that are deemed fair (notice and opportunity to

be heard) when it engages in actions that tend to deprive a person of life, liberty, and/or

property. In literal terms, this is often viewed as an equity issue. See procedural v. substantive

due process, David Dalition, Adv. Con. Law Note 102. In other words, has the citizen in question

be treated fairly. Said another way, has the government fairly, as opposed to arbitrarily,

handled this person’s situation. Any action by the government must be handled in such a way

that the person allegedly deprived of life, liberty and/or property, must be provided due

process of law.

 

4. What are the first questions asked when deciding whether there is a due process violation?

In most cases, the first questions asked are whether a person has been deprived of his life

liberty, and/or property (also sometimes referred to as being taken) and, if the answer is yes,

then we must ask whether that person was provided due process of law prior to the

deprivation or taking of life, liberty, and/or property.

 

5. Is Due Process generally related to life, liberty, or property? Generally, procedural due

process pertains to the government’s deprivation of life, liberty, and/or property. See the

Incorporation Doctrine, David Dalition Adv. Con. Law Note. In other words, we are talking

about governmental overreach, not the overreach of one private individual against another

private individual. Also, the matter must pertain to life, liberty, and/or property as there is not

considered to be a general interest in having the government behave with fair procedures in

the overall sense pertaining to every action taken.

 

6. What is notice and an opportunity to be heard? Generally, notice is construed to mean that

before the government deprives a person of their life, liberty, and/or property, the government

must provide said person of its intent to take life, liberty or property from them. The notice

must be adequate for the person to prevent a defense or rebuttal to the government’s

intended action(s). The opportunity to be heard envisions that the person has an opportunity

to present his or her defense or rebuttal to an unbiased finder of fact. In other words, the

person has the opportunity to show why the government’s intended taking and deprivation

should not occur as it violates the constitution or applicable statutes and laws