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Due Process

What does due process of law under the 14th Amendment mean?

The due process clause states that “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Due Process provides both procedural and substantive guarantees.

Procedurally, Due Process grants individuals the opportunity to be heard at a meaningful time and in a meaningful manner. Things such as effective service of process and an impartial hearing are thus required because of this procedural protection. Substantively, Due Process protects fundamental rights from government interference without meeting strict scrutiny. Fundamental rights include those liberties that are “deeply rooted in this Nation’s history and tradition.”

The most important of these fundamental rights is the supposed Right of Privacy. See Pierce v. Society of Sisters, 268 U.S. 510 (1925) (Parents have a private, fundamental right to choose what school their children may attend); Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965) (the Right of Privacy precludes a government from banning the use of contraceptives); Planned Parenthood v. Casey, 505 U.S. 833 (1992) (the Right of Privacy is broad enough to permit a woman to have an abortion); Zablocki v. Redhail, 434 U.S. 374 (“the right to marry is part of the fundamental ‘Right of Privacy’ implicit in [the] Due Process Clause”).

More recently, the U.S. Supreme Court has found that the Right of Privacy “protects the person form unwarranted government intrusions into a dwelling or other private places.” Lawrence v. Texas, 539 U.S. 558 (2003). There are, further, “other spheres of our lives and existence, outside the home, where the State should not be a dominant presence.” Based on this reasoning, the Supreme Court found that the Right of Privacy is broad enough to permit consenting adults to engage in private sexual relations because it is a realm of personal liberty which the government may not enter.

While the procedural aspect of due process is undisputed, there is and has been controversy around the supposed substantive component of due process. Specifically, dissenters suggest that due process is solely a procedural protection, rather than a safeguard for un-enumerated rights which are largely founded in a given judge’s personal predilection.

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