Due Process is a frequently tested topic in Constitutional Law on the bar exam. Questions often require distinguishing between procedural due process and substantive due process.
Understanding the difference between these two doctrines is essential.
What Is Due Process?
The Due Process Clause limits the government’s ability to deprive individuals of life, liberty, or property.
There are two types of due process:
• Procedural due process
• Substantive due process
Each serves a different purpose.
Procedural Due Process
Procedural due process focuses on the fairness of the procedures used by the government.
When it applies, courts ask whether the government provided adequate safeguards before depriving someone of life, liberty, or property.
Key considerations include:
• Notice
• Opportunity to be heard
• Fair procedures
Example: Before terminating a government benefit, the individual must typically be given notice and a chance to respond.
Substantive Due Process
Substantive due process focuses on the rights themselves, not the procedures.
It protects fundamental rights from government interference.
If a fundamental right is involved, courts apply strict scrutiny.
If no fundamental right is involved, courts apply rational basis review.
This makes substantive due process closely tied to levels of scrutiny analysis.
Key Differences Between Procedural and Substantive Due Process
The most important differences are:
• Focus → Procedural: fairness of process; Substantive: protection of rights
• Question → Procedural: was the process fair? Substantive: is the law itself valid?
• Analysis → Procedural: balancing fairness factors; Substantive: apply levels of scrutiny
Example
If the government takes away a benefit without a hearing, the issue is procedural due process.
If the government passes a law restricting a fundamental right, the issue is substantive due process.
Common Exam Traps
Due process questions often include traps such as:
• Confusing procedural and substantive due process
• Failing to identify whether a fundamental right is involved
• Applying the wrong level of scrutiny
Careful identification of the issue is critical.
How Due Process Is Tested on the Bar Exam
Due process questions typically require identifying:
• Whether the issue is procedural or substantive
• Whether a fundamental right is involved
• What level of scrutiny applies
On essays, clearly distinguish between procedural and substantive due process. On multiple-choice questions, focus on whether the question is about process or the underlying right. Substantive due process is closely related to equal protection, as both doctrines use levels of scrutiny to evaluate government action.