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

Due Process

Procedural Due Process

A Two-Step Process

In the modern era, courts analyze procedural due process issues according to a two-step process.

First, the court asks whether the government has deprived someone of “life, liberty or property.” Only if the court decides that the government has intentionally and significantly deprived someone of one of these things will it go on to the next step.

Second, the court decides what procedures are appropriate in the particular circumstance. Some deprivations are not very significant, and require only minimum procedures: notice and an opportunity to be heard, perhaps in an informal setting. But other deprivations by the government are so significant that elaborate procedures are due. For example, in a death penalty case the government proposes to take away someone’s life, which is about as serious as deprivation can get. Appropriately, the procedures the government must follow in such a case are very elaborate and might take years, or even decades, to complete.