12 February 2021

IN RE | Due Process


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Const. Amend. V

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. Amend. XIV § 1

The fifth amendment requires the Federal Government to apply due process for federal deprivations. The fourteenth amendment provides that states, by incorporation, apply due process also for state deprivations.

The requirement for due process may exist in the various circumstances, but the due process afforded may not be the same. For example, the due process afforded in a federal criminal proceeding is noticeably different from the due process afforded to the firing a federal administrative agency employee. Legislation can even explicitly state a description of the due process afforded to a right also given by the same legislation. Another example; due process may be different when a police officer or another government employee is implicated in a crime than say a private citizen. 

The presence of a full trial with presentation of evidence form the prosecution and the accused, a period of questioning from the finder of fact (Jury), and an opportunity to be heard tends to also suggest the presence of due process.