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Edited By : Amy Edel
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What Is the Due Process Clause?

The Constitution addresses the protections of due process in the Fifth Amendment with the due process clause, which provides that no one shall be “deprived of life, liberty or property without due process of law.” It also addresses them in the 14th Amendment, which ensures that all levels of the U.S. government operate within the law and use fair procedures.

The United States Supreme Court interprets the clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.

Elements of procedural due process involve notice, the opportunity to be heard and a decision by a neutral decision-maker.

Types of Due Process

Due process under the Fifth and 14th Amendments can be broken down into two categories: procedural due process and substantive due process. Procedural due process, based on principles of fundamental fairness, addresses which legal procedures are required to be followed in state proceedings.

Substantive due process protects fundamental rights of “life, liberty or property” from government interference without due process. Under substantive due process, a law must be related to a legitimate state purpose, and laws that regulate fundamental rights must be narrowly tailored to achieve it.

Procedural due process provides that when the government denies someone’s fundamental rights, that person must be given notice and the opportunity to be heard, and they must be provided with a decision by a neutral decision-maker.

Due process procedures also include the right to present evidence and know the opposing evidence, the opportunity to be represented by counsel and the requirement that the tribunal provide written findings.

Due Process Clause and Eminent Domain

The right of the government to take private property for public use is called eminent domain. With the due process clause, the Fifth Amendment requires that the government provide due process before taking someone’s property through eminent domain. In addition, the government cannot deprive anyone of their property as a “public use” without just compensation.

Before the adoption of the 14th Amendment, the power of eminent domain of state government was unrestrained by any federal authority. However, the 14th Amendment ensures that the principle of just compensation applies to state and local governments.

While the power of eminent domain is inherent in government, it may be exercised only through legislation or legislative delegation. A fundamental element of just compensation is the payment of the compensation without unreasonable delay.

Takings Clause

The power of eminent domain is defined by the Takings Clause of the Fifth Amendment to the U.S. Constitution. The Constitution limits the government’s power to take land for “public use” and in exchange for “just compensation.” The term Takings has been broadly interpreted to mean any purpose that benefits the general public.

There are different categories of takings. A complete taking occurs when the whole property is purchased. A partial taking occurs when only a portion of the property is taken, and a temporary taking occurs if the property is only needed for a specific time.

Just Compensation Clause

The Constitution does not set out the method for determining the value of the land it is taking or what just compensation is in any given circumstances. The standard for just compensation has evolved over years of interpretation by federal and state courts.

The goal is to make the landowner “whole” again, as if the taking did not occur, but valuation is often disputed. In the most straightforward case, the amount of just compensation paid is the property’s fair market value as calculated by a real estate appraiser or other professional.

What Violates the Due Process Clause?

With procedural due process, if landowners do not receive notice and an opportunity for a judicial determination of the legality of the taking before the land is taken and title changes, it would constitute a breach of due process.

When fighting eminent domain, a landowner should, therefore, typically have a right of negotiation and a right to receive a copy of any government appraisals of their land. They may also have the right to apply to a court to have the court decide the amount of just compensation.

There is consensus that the application of due process in the context of government takings has been inadequate in the past. Critics have argued that the historic, broad interpretation of “public use” to mean purposes connected with “eliminating blight” or “urban renewal” have targeted racial and ethnic minorities.

Similarly, governments which effectively give private corporations the rights of eminent domain via legislation may be subject to eminent domain lawsuits arguing that the use is not a “public use” under eminent domain.

Please seek the advice of a qualified professional before making decisions about your health or finances.
Last Modified: January 25, 2023

13 Cited Research Articles

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  1. Strauss, P. (2022, October). Due Process. Retrieved from https://www.law.cornell.edu/wex/due_process
  2. MRSC. (2021, September 30). Property Rights and Regulatory Takings. Retrieved from https://mrsc.org/home/explore-topics/legal/planning/regulatory-takings.aspx
  3. Monk, L.R. (2021). Due Process Clause, Equal Protection Clause and Disenfranchising Felons. Retrieved from https://www.pbs.org/tpt/constitution-usa-peter-sagal/equality/due-process-equal-protection-and-disenfranchisement/
  4. Linder, D. (2021) Procedural Due Process. Retrieved from http://law2.umkc.edu/faculty/projects/ftrials/conlaw/proceduraldueprocess.html
  5. U.S. Commission on Civil Rights. (2014, June). The Civil Right Implications of Eminent Domain Abuse. Retrieved from https://www.usccr.gov/files/pubs/docs/FINAL_FY14_Eminent-Domain-Report.pdf
  6. Hudson, D.Z. (2010, April). Eminent Domain Due Process. Retrieved from https://openyls.law.yale.edu/bitstream/handle/20.500.13051/9835/40_119YaleLJ1280_April2010_.pdf?sequence=2&isAllowed=y
  7. Nelson, J. (2005, April 15). Fourteenth Amendment and Eminent Domain. Retrieved from https://www.cga.ct.gov/2005/rpt/2005-r-0421.htm
  8. Constitution Annotated. (n.d.) Amdt 143.S1.3.1 Overview. Retrieved from https://constitution.congress.gov/search/due%20process
  9. Cornell Law School Legal Information Institute. (n.d.). Procedural due process. Retrieved from https://www.law.cornell.edu/wex/procedural_due_process
  10. Cornell Law School Legal Information Institute. (n.d.) Substantive Due Process. Retrieved from https://www.law.cornell.edu/wex/substantive_due_process
  11. JUSTIA US Law. (n.d.) National Eminent Domain Power. Retrieved from https://law.justia.com/constitution/us/amendment-05/14-national-eminent-domain-power.html
  12. Wrigley, D.H. (n.d.) Landowner Rights under Eminent Domain Laws. Retrieved from https://attorneygeneral.nd.gov/consumer-resources/landowner-rights-under-eminent-domain-laws
  13. Zavah, B.A. (n.d.). Texas Eminent Domain – A Violation of Constitutional Due Process. Retrieved From https://www.sierraclub.org/texas/big-bend/texas-eminent-domain-violation-constitutional-due-process