Procedural due process involves the way the government goes about infringing on Americans’ rights. Procedural due-process cases assume that the government is constitutionally allowed to take away a right. (Substantive due process questions whether the government has that right in the first place.) In these cases, the courts consider two questions that determine constitutionality: (1) Was adequate notice given? and (2) Did the person have an opportunity to be heard?
A two-part analysis determines whether the government has afforded adequate procedural due process under the Constitution:
Is any process due?
That is, have the people making the challenge established that they were even deprived of a legitimate property or liberty?
If process is due, how much?
This balancing test weighs how important the person’s right is and how important the government’s interest is, as well as what the risk is of depriving someone wrongfully with the present procedures as opposed to having additional or different procedures.
