Joe Public

The Fourteenth Amendment reads, in part, that no state shall “deprive any person of life, liberty, or property, without due process of law.” This applies to the states and to local governments. The Due Process Clause of the Fifth Amendment applies to the federal government. However, most Due Process issues involve state laws. (Essex, N.L.,) The critical point in Procedural Due Process is that the individual must have been deprived of a recognized liberty or property interest. State law determines whether or not a liberty or property interest exists. Federal law defines what process is due. Concisely, when one is going to deprive an individual of life, liberty, or property, it is essential to notify him or her of the deprivation and the individual must also be given the occasion for others to hear his or her side. However, if the required procedures are not followed carefully, this will conclude in a violation of the individual's constitutional rights. Whereas, Substantive Due Process associates with the type of decision; it conveys that the state has a justifiable objective when intending to deprive a person of life, liberty, or property. Moreover, Procedural Due Process gives the Court the power to say to the government, “You may not do this unless you do it a certain way”; and Substantive Due Process allows the Court to say; “You may not do this at all.”

To begin, an analysis must be reviewed to determine if Joe Public has in fact been deprived of such right. Every Due Process Clause begins with the question “Has the government deprived some person of life, liberty, or property?” If there has been no government action, or if there has been no deprivation, then there cannot be a Due Process issue; substantive or procedural. However, if there is a governmental deprivation falling under the Due Process Clause, then the substantive due process analysis must continue. A small burden on an individual’s rights is acceptable. However, it is when the burden rises to the...