LS500-01 Legal Methods and Process
Professor Holland Jones
November 4, 2012
The constitution affords citizens the right to due process. Among others this is arguably one of the most important rights to the people. Due process can be defined as having the right to maintain rights in a court of law. The whole practice of innocent until proven guilty is due process. There is admiration in this belief but some may believe it to be far from reality. For the most part due process refers to the “process” in which one’s rights are exercised according to principles outlined within the constitution. Furthermore due process is another protection of violation and following is a discussion of procedural due process, substantive due process, and equal protection and what it all means. Due Process
If there was a situation in which a woman arrives at a local market, an old woman, and a police officer approaches her and, seemingly without cause or explanation, handcuffs her and takes her to prison where she remains for ten years, would this be considered due process or violation of? In short, yes, the police officer has violated her due process rights, the constitution has outlined specifically the aspects of this right and when, how and where it should attach. “No person shall be deprived of life, liberty, or property, without due process of law.” U.S. Const. Amend. V. So the notion of this police officer “justly” acting in this manner would be exactly the reason the due process clause exists, furthermore why it exist not only once but twice in the U.S. Constitution. Due Process can be defined as the actual legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case. (Garner, 2006) This can be interpreted between both the 5th Amendment and the 14th Amendment. “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV §1. The focus of the 14th Amendment is to ensure that all states adhere to this as well, due to the broad 5th Amendment inclusion, one may argue that this more specific inclusion in the 14th Amendment can present a fair and more clear synopsis of the purpose of due process. There are two different ways to utilize due process, procedurally and substantively. Procedural Due Process Cases
This due process refers to the type of process in which a duty to the people is due. There is a “procedural” aspect to it because it refers to just that; the processes in which people are held accountable for their actions. It is the “minimal requirements of notice and a hearing guarantedd but he 5th and 14th Amendments, where deprivation of life, liberty, or property interest may occur. (Garner, 2006) “How the law is just; source of fairness in the Constitution; decided mostly through Balancing Tests of interests and consideration of error; related to concept of legitimacy; interpretation is the whole phrase [without due process of law] activating the term [without].” (Stevens, 2003) It is a belief that this type of protection will only arise in court, however, there are other ways procedural due process works. By implementing regulatory activities or denying them based upon other previously decided rules or principles, procedural due process has worked. Also another important thing to remember is that it is only interpreted with the threat of one’s life, liberty, or property being jeopardized. (Nowak &Rotunda, 2010, p. 331). There are cases that refer to procedural due process, a state depriving a mentally ill patient from liberty in order to protect themselves and others but this is a process where there is no court, jury or judge. There is another situation that would deprivation would be immigration laws that require authorities to deprive them of their liberties...