The Bill of Rights and the 14th Amendment

Fifth Amendment

What is due process?

Due process—a freedom also found in the Fourteenth Amendment—is one of the most important rights in the American legal system. It ensures a basic level of fundamental fairness before the state infringes on individual liberty.

Due process has often been divided into two basic categories: procedural due process and substantive due process. Procedural due process means that the government must guarantee a fair process before taking away an individual’s life, liberty, or property. The basic elements to procedural due process are notice and the right to a fair hearing. This prevents the government from arbitrarily taking away someone’s job or freedom.

Substantive due process means that laws cannot be irrational and arbitrary. Instead laws must advance a legitimate, governmental objective. Normally, the government must have a rational basis for its laws.


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