Substantive Law Study Support

Questions for Review and Answers

1. In general, what does the Due Process Clause provide, and what is meant by due process?
Neither the state nor the federal government can deprive a person of life, liberty, or property without due process. In general, due process means fair.

2. Compare and contrast substantive due process and procedural due process.

Substantive due process limits the right of the federal and state governments to enact laws that interfere with life, liberty, or property. Procedural due process deals with the

procedures that government uses whenever it actually deprives a person of life, liberty, or property.

3. Explain the terms liberty, property, and person as those terms are used in the Fifth and Fourteenth Amendments.
Liberty includes freedom from bodily restraint, as well as several personal freedoms, such as the right of the individual to contract; to engage in any of the common occupations of life; to acquire useful knowledge; to marry, establish a home, and bring up children; to worship God according to the dictates of her or his own conscience. It also includes the right of a woman to choose an abortion, the right of married couples regarding contraception, and the right to refuse medical treatment. Property includes tangible real and personal property, as well as intangible interests, such as employment rights, government benefits, driver’s licenses, and the right to attend school.
Person is usually an individual. Person includes corporations where the interest is financial, but usually not where the interest is personal (i.e., no Fifth Amendment right against self-incrimination). Person does not include the state.

4. When do the Fifth and Fourteenth Amendments apply to private conduct?

When there is some connection between the individual and the government, that is, an individual acting in an official way, an individual doing a government function, or individuals using government procedures (e.g., filing a lawsuit in court).

5. What standards are used by the Supreme Court when it reviews a law for substantive due process violations?

It depends on the nature of the right affected. If there is a fundamental right, then the Court uses strict scrutiny and requires a compelling need for the law. If a nonfundamental right is involved, the test is a rational basis one. The law must not be arbitrary, and it must be reasonably related to its purpose.

6. What are some of the liberty interests protected by substantive due process?

Liberty interests include economic liberties, freedom to marry, freedom to choose abortion, contraception, sexual matters, and the right to refuse medical care.

7. What property interests are protected by substantive due process?

Other than traditional notions of real and personal property, this includes employment rights, government benefits, driver’s license, and the right to attend school.

8. Briefly summarize the procedures required by the Due Process Clause in criminal cases.
Most of the procedures are found in the Bill of Rights. These procedures basically require that arrest, interrogation, trial, and sentencing procedures must be fair.

9. What aspects of a civil case are governed by the Due Process Clause?

In addition to the question of jury trials, procedural due process issues in civil lawsuits concern notice, jurisdiction of a state over nonresident defendants, prejudgment attachment of property, burden of proof required at trial, rights of indigent parties, and punitive damages.

10. What are the basic requirements for due process whenever the government deprives a person of life, liberty, or property?
Laws must be fair and serve a proper government function. Generally, procedures must provide for notice and hearing.