You may hear the phrase “due process” in the media whenever a high-profile criminal case is in the news, but where does it come from and what does it really mean?

Where is due process?

Due process is a constitutional principle that our government must follow before taking a person’s liberty or property. The Fifth Amendment states that “no person shall be subject to twice the due process guarantees of the federal government for the same crime, and states that no person shall be “deprived of life, liberty, or property, without due due process.” They are required to provide due process because the 14th Amendment states: “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 an 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 the defendant is presumed innocent until proven guilty by an impartial judge or jury. Due process does not only exist in a criminal trial, due process protections also apply whenever a person’s property interests are taken.

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 ticket a resident for bylaw violations, such as excessive noise or because the paint on their home is the wrong color, a hearing must first be held where the resident is given a chance to be heard.

Fundamental rights

In addition to the “procedural due process” rights described above, which govern how the government must act, the constitution also guarantees “substantive due process” rights. Although 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 in enacting and enforcing the law, a substantive right “vetoes” the law.

Right to privacy

The federal Constitution does not contain a right to privacy, but the courts have ruled that it exists. Our substantive right to privacy due to due process 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 engage in consensual sex. Substantive due process rights to marry have formed the basis for repealing laws banning interracial marriage across the country and gay marriage in Massachusetts. In Goodridge v. Massachusetts Department of Public Health, the state Supreme Court ruled that excluding same-sex couples from marriage “is inconsistent with 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.