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Fifth Amendment - Due Process Clause

substantive procedural law proceedings

The Fifth Amendment's Due Process Clause has two aspects: procedural and substantive. Procedural due process is concerned with the process by which legal proceedings are conducted. It requires that all persons who will be materially affected by a legal proceeding receive notice of its time, place, and subject matter so that they will have an adequate opportunity to prepare. It also requires that legal proceedings be conducted in a fair manner by an impartial judge who will allow the interested parties to present fully their complaints, grievances, and defenses. The Due Process Clause governs civil, criminal, and administrative proceedings from the pretrial stage through final appeal, and proceedings that produce ARBITRARY or capricious results will be overturned as unconstitutional.

SUBSTANTIVE DUE PROCESS is concerned with the content of particular laws that are applied during legal proceedings. Before WORLD WAR II, the U.S. Supreme Court relied on substantive due process to overturn legislation that infringed on a variety of property interests, including the right of employers to determine the wages their employees would be paid and the number of hours they could work. Since World War II, the Court has relied on substantive due process to protect privacy and autonomy interests of adults, including the right to use contraception and the right to have an ABORTION.

The line separating procedure from substance is not always clear. For example, procedural due process guarantees criminal defendants the right to a fair trial, and substantive due process specifies that 12 jurors must return a unanimous guilty verdict before the death penalty can be imposed. The concepts of substantive and procedural due process trace back to English law. The MAGNA CHARTA provided, "No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way … except by the lawful judgment of his peers, or by the law of the land" (art. 39). According to eminent English jurist SIR EDWARD COKE, law of the land and due process of law were interchangeable terms that possessed both procedural and substantive meaning.

The American colonists followed the English tradition of attributing substantive and procedural qualities to the concepts of due process and the law of the land. Maryland and Massachusetts, for example, equated the two concepts with colonial COMMON LAW and legislation regardless of their procedural content. On the other hand, Virginia, Pennsylvania, and Vermont all passed constitutional provisions identifying the law of the land with specific procedural safeguards, including the right against self-incrimination. Thus, when the Due Process Clause was submitted to the state conventions for ratification, it was popularly understood to place procedural requirements on legal proceedings as well as substantive limitations on the law applied in those proceedings.

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about 6 years ago

This is my first Intro Law class. I'm really need help. I have to:
Give (a short) arguments for how a judge should go about deciding what is the most appropriate interpretation for:
Article I Sec 8, "regulated commerce".
Article II Sec 4, "other high crimes"
Amend. IV, "unreasonable search and s seizure"
Amendment V, due process of law

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over 6 years ago

Thanks I am a debater and this helped my case

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about 7 years ago

what is the effect of substantive or procedural due process on breach of K or 3rd party interference with K obligations?

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over 7 years ago

I am a college senior studying criminal justice. I am learning the difference between substantive and procedural due process in leiu of the 5th and 6th amendment. This was the best explanation of 'substantive' due process I could find. I have searched now for 2 hours on the internet. This one is the best example.

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over 8 years ago

Thanks. I needed to know whether questions of the constitutionality of a statute is considered "substantive" law as oppose to procedural law."

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over 8 years ago

thanks this article pinpointed exactly what i needed to know regarding the due processing definition. It was straight to the point and simple.

Thanks, a freshman in college writing a research paper