The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

Due Process

Two Kinds of Due Process

Procedural and Substantive

When you think of “due process,” it is natural to think of procedures. And, in fact, that is mostly how the Framers thought of it: the Due Process Clause gives us what are commonly called “procedural” rights. That is, while the government can do some nasty things to citizens—like taking away liberty, property and even lives—it must follow certain procedures before it can do so. Such procedures are generally designed to avoid arbitrary governmental action and even to provide some level of basic fairness to interactions between government and the people. Accordingly, we call this concept “procedural due process.”

It is far less natural, when you think of “due process,” to think about imposing substantive limits on what government can do. But the Due Process Clause has been interpreted to impose just such limits. In other words, the Due Process Clause can limit not just how government can treat you, but whether it can treat you a certain way at all. We call this second concept “substantive due process.”