Lecture Three – Due Process: Substantive and Procedural Protections Under the Fifth and Fourteenth

Law School

Summary

This lecture discussion examines the dual dimensions of due process under the Fifth and Fourteenth Amendments: procedural due process and substantive due process. Procedural due process ensures that the government follows fair methods before depriving individuals of life, liberty, or property. This includes notice and an opportunity to be heard, with requirements varying by context according to the Mathews v. Eldridge balancing test. Substantive due process protects certain fundamental rights from government intrusion regardless of the procedures used. The lecture traces the doctrine from its controversial origins in the Lochner era to its evolution in protecting rights related to privacy, autonomy, and family, including landmark decisions like Griswold v. Connecticut, Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges. It also discusses the role of selective incorporation, which applies most of the Bill of Rights to the states through the Fourteenth Amendment. The lecture concludes by reflecting on due process as both a safeguard of individual liberties and a structural principle of fairness in American constitutional law.

Key Takeaways

Two Branches of Due Process:

Procedural: Ensures fairness in how the government acts.

Substantive: Limits what the government may do, protecting fundamental rights.

Procedural Due Process:

Triggered when life, liberty, or property is at stake.

Assessed using the Mathews v. Eldridge three-part balancing test.

Applied in both civil and criminal contexts (e.g., Goldberg v. Kelly, Hamdi v. Rumsfeld).

Substantive Due Process:

Protects deeply rooted rights not explicitly listed in the Constitution.

Key cases: Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, Lawrence v. Texas, Obergefell v. Hodges.

Fundamental rights trigger strict scrutiny; non-fundamental rights require only rational basis review.

Criticism and Defense:

Critics: Lacks textual foundation; invites judicial activism.

Defenders: Essential to protect liberty from majoritarian overreach.

Selective Incorporation:

Most of the Bill of Rights applies to states via the Fourteenth Amendment’s Due Process Clause.

Ensures nationwide uniformity in core constitutional protections.

Rule of Law Values:

Due process also ensures clarity, predictability, and fairness in law (e.g., Papachristou v. Jacksonville)