What is the Difference Between Procedural and Substantive Due Process?

The difference between procedural and substantive due process lies in the nature of the legal protections they provide.

Procedural Due Process refers to the legal requirement that the government must follow specific procedures when acting in a way that denies a citizen's life, liberty, or property interests. It ensures that government actions are fair and transparent, and it protects individuals from arbitrary and unreasonable decisions. Key aspects of procedural due process include:

• Notice of the proposed action and the grounds asserted for it
• Opportunity to be heard and present evidence
• The right to cross-examine adverse witnesses
• A decision based exclusively on the evidence presented
• Opportunity to be represented by counsel
• Requirement that the tribunal prepare a record of the evidence presented
• Requirement that the tribunal prepare written findings of fact and reasons for its decision

Examples of procedural due process rights include the Fourth Amendment right against unlawful search and seizure, the right to a trial by jury, the right to an attorney, and freedom from self-incrimination.

Substantive Due Process is the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference. It is based on the premise that the constitution protects the public from government actions that infringe on fundamental rights and liberties, even if the government follows the appropriate procedures. The Supreme Court has interpreted substantive due process to include various fundamental rights, such as:

• The right to privacy, specifically the right to contraceptives
• The right to pre-viability abortion
• The right to marry a person of a different race

In summary, while procedural due process focuses on ensuring that the government follows fair and transparent procedures when taking actions that affect individuals' life, liberty, or property interests, substantive due process is concerned with protecting fundamental rights and liberties from government interference, even if the government has followed the appropriate procedures.

Comparative Table: Procedural vs Substantive Due Process

The main difference between procedural and substantive due process lies in their focus and application. Procedural due process ensures that legal matters are resolved according to established rules and principles, while substantive due process focuses on protecting fundamental rights from government interference, even if procedural protections are present or the rights are not specifically mentioned elsewhere in the Constitution.

Here is a table summarizing the differences between procedural and substantive due process:

In summary, procedural due process is concerned with the fairness of the process used to try and convict defendants accused of crimes, while substantive due process aims to protect individuals' fundamental rights from government interference.