Constitutional Law For Dummies
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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:

  1. Is any process due?

    That is, have the people making the challenge established that they were even deprived of a legitimate property or liberty?

  2. 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.

About This Article

This article is from the book:

About the book authors:

Glenn C. Smith is a professor of constitutional law at California Western School of Law in San Diego, CA, and creator of a nationally recognized seminar in which law students learn about the Supreme Court by role-playing as current justices and lawyers arguing before them.

Patricia Fusco is a government attorney and a criminal prosecutor working in the California Attorney General's Office, Special Crimes Unit. As a trial attorney, she deals with issues of constitutional law on a daily basis.

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