This is one of a series of columns written by members of the Franklin County Bar Association on aspects of the U.S. Constitution’s 14th Amendment, which is the focus of the association’s Law Day celebration this year. Law Day is May 1. The opinions are those of the individual lawyers and not the association.
The Due Process Clause of the 14th Amendment to the U.S. Constitution prevents the government from depriving any person of life, liberty or property without due process of law. Due process requires that the government act according to lawful procedures and in a way that is neither arbitrary nor capricious, ensuring fairness by preventing abusive government actions and by limiting legislative authority to enact laws that interfere with fundamental rights.
Much of scope of the 14th Amendment’s reach comes from the power of the due process clause. The clause incorporates many federal constitutional guarantees into the due process clause, making these rights applicable against the states. The due process clause is also the source of protection for certain unenumerated rights, such as the right to privacy. Procedural due process acts to safeguard civil and criminal procedural integrity, while substantive due process requires the content of law to be fair and reasonable.
The due process clause promises that before the government can intentionally take an individual’s life, liberty, or property, the government must follow certain procedures. Procedural due process protects private civil rights, as well as protects the basic rights of defendants in criminal proceedings and at trial. Procedural due process guarantees that when the government deprives individuals of life, liberty, or property, they have a right to be notified, in a way that is reasonably calculated to inform them of the deprivation. With notification, they are able to make an informed choice as to action or defense. Procedural due process enables individuals to enforce and protect their rights before an impartial decision maker at a meaningful time and in a meaningful manner.
Fair and adequate procedural due process protections are devised by balancing the interests of the state against the harm to the individual aggrieved. In determining what procedures suffice so as to not offend due process, courts consider the importance of the deprivation to the individual, the risk of error through procedures used, accuracy to be gained from additional procedures and the burden on the government. In a substantive due process claim, it is impermissible government action at issue, regardless of any procedures that may be in place.
A substantive due process claim may involve a claim to a right not directly addressed in the Constitution, such as the rights to privacy, procreation, use of contraception, abortion, interstate travel, vote, refuse medical treatment, marriage and reside with extended family. If the claim addresses a recognized fundamental right, the government has the burden of proof to show that the law is necessary. The court strictly scrutinizes the law or government action to determine if it is necessary to promote a compelling or overriding state interest and is narrowly tailored to be as least restrictive as possible. If the court determines that the right claimed is not a fundamental right, the court will require the challenger to prove that the law or government action was arbitrary or unreasonable and is not rationally related to any legitimate government purpose. Since courts generally show extreme deference to legislative policy judgment when fundamental rights are not at stake, it is far less likely a challenger will prevail when the court only has to find a rational basis for the government action.
Controversy over substantive due process principals is rooted in the interpretation of the due process clause. Critics claim that because the framers of the United States Constitution identified property rights as the basis for political freedom, and the clause appears to protect both property and liberty interests equally, the due process clause should also protect property rights to the same extent as fundamental rights. Judicial interpretation of the due process clause is still evolving; while the due process clause has the power to remedy egregious legislation and government misconduct against people, its relatively recent protection of corporate persons has created new controversies that critics claim impact economic fairness.
While the Due Process Clause of the 14th Amendment is an essential part of the foundation of modern jurisprudence, its expanding scope will continue to have a considerable impact on American life.