Due Process Mini-Outline

The Due Process Clause of the 5th-applies to the Federal Government.5 min read


The Due Process Clause of the 5th-applies to the Federal Government

The 14th Amendment-applies to the States

Both provide that the govt shall not take a person's life, liberty, or property w/o due process of law.

  • Due Process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action.
  • Fair Process is required for intentional acts of the government or its employees.
  • Though mere negligence doesn't prompt violation of the Due Process Clause.

Notice & Hearing Trigger:

  1. Is there a
    1. Property Interest [legitimate claim of entitlement] OR
    2. Liberty Interest [free from physical restraint or "stigma plus" , damages to reputation plus some additional harm, such as unable to obtain further employment b/c of the stigma]

***If Liberty or Property Interest is violated then:

  1. What Process is Due? {Mathews v. Eldridge balancing test: Private interest affected & risk of erroneous deprivation versus Government's interest.


Property includes more than personal belongings & realty, chattels, or money, but an abstract need or desire for (or unilateral expectation of) the benefit is not enough. There must be a legitimate claim or entitlement to the benefit under state or federal law. [Board of Regents v. Roth; Leis v. Flynt] Examples of Property Interest include:

  1. Public Education: There is a property interest in public education when school attendance is required. Thus, a significant suspension (ie. 10 days) requires procedural due process. [Goss v. Lopez].
  2. Welfare Benefits: One has a property interest in welfare benefits if she has previously been determined to meet the statutory criteria. [Goldberg v. Kelly]
  3. Continued Public Employment: If there is a state statute or ordinance that creates a public employment K, or there is some clear practice or mutual understanding that an employee can be terminated only for "cause", then there is a property interest. [Arnett v. Kennedy] -But if the employee holds his position on ly at the "will" of the employer, there is no property interest in continued employment. [Bishop v. Wood]

Notice of Adversary Proceedings:

When the government seeks to use a judicial or administrative process to take or terminate property interests, it MUST GIVE NOTICE to those persons whose property interests may be taken by that process. The form of notice must be reasonably designed to insure that those persons will in fact be notified of the proceedings.

Civil Forfeitures:

Procedural due process limits the government's ability to seize property allegedly subject to forfeiture (which most often occurs when the government claims that the property was connected to, or was the product of, criminal activity). Absent exceptional circumstances, the government must provide the owner of Real Property notice and an opportunity for some type of hearing PRIOR to seizing real property.



  1. Determination that the substance of a law [the restrictions that the regulation seeks to impose] affecting ALL people is VALID under the Constitution.
  2. Generally, most substantive issues are reviewed under Equal Protection grounds.

Rational Basis Test:

  1. All laws must be non-arbitrary, ie reasonable
  • Government act doesn't violate due process if it rationally relates to a legitimate governmental interest.
  • Closing estate loophole retroactively is valid. {US v. Carlton
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