753 The core of these requirements is notice and a hearing before an impartial tribunal. First, “rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” 752 Thus, the required elements of due process are those that “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the basis upon which a state proposes to deprive them of protected interests. The Requirements of Due Process.-Although due process tolerates variances in procedure “appropriate to the nature of the case,” 751 it is nonetheless possible to identify its core goals and requirements. 749 Further, it is up to a state to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate. 748 Nor does the Fourteenth Amendment prohibit a state from conferring judicial functions upon non-judicial bodies, or from delegating powers to a court that are legislative in nature. 746 Moreover, the Due Process Clause does not require de novo judicial review of the factual conclusions of state regulatory agencies, 747 and may not require judicial review at all. 745 Administrative and executive proceedings are not judicial, yet they may satisfy the Due Process Clause. Non-Judicial Proceedings.-A court proceeding is not a requisite of due process. If that were so, the procedure of the first half of the seventeenth century would be “fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment.” 743 Fortunately, the states are not tied down by any provision of the Constitution to the practice and procedure that existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary. However, it does not follow that a procedure settled in English law and adopted in this country is, or remains, an essential element of due process of law. 742 In other words, the antiquity of a legal procedure is a factor weighing in its favor.
Relevance of Historical Use.-The requirements of due process are determined in part by an examination of the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and in the early years of this country. 740 In civil contexts, however, a balancing test is used that evaluates the government’s chosen procedure with respect to the private interest affected, the risk of erroneous deprivation of that interest under the chosen procedure, and the government interest at stake. 739 The appropriate framework for assessing procedural rules in the field of criminal law is determining whether the procedure is offensive to the concept of fundamental fairness.
738 A basic threshold issue respecting whether due process is satisfied is whether the government conduct being examined is a part of a criminal or civil proceeding. 737 Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved.
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.ĭue process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.
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