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Due Process - restricts the ways in which government can limit individual freedom (Nowak & Rotunda, 2007).

Substantive Due Process – protects certain fundamental rights or void arbitrary limitations of individual freedom of action. The 14th Amendment is the incorporation of many of the guarantees in the Bill of Rights, thus legislation cannot be passed that denies such protected freedoms (Nowak & Rotunda, 2007).

Procedural Due Process – guarantees that each person shall be accorded a certain “process” if the government deprives them of life, liberty, or property.  If the government deprives a person physical liberty for a substantial period of time and penalizes him or her, due process guarantees that person a trial (Nowak & Rotunda, 2007).

In Matthews v. Eldridge, 424 U.S. 319 (1976) - the U.S. Supreme Court stated that it will consider three factors as a due process balancing test.

1.       The private interest that will be affected by the official action.

2.       The risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any of additional or substitute procedural safeguards.

3.       The governments interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requisites would entail.


Due process requires a neutral decision-maker, be it a judge, hearing officer, or agency. Decision makers are constitutionally unacceptable where they have a personal monetary interest in the outcome of the adjudication or where they are professional competitors of the individual. Gibson v. Berryhill, 411 US 564 (1973); Ward v. Village of Monroeville, 409 U.S. 57 (1972); Tumey v. Ohio, 273 US 510 (1927).

Due process requires that indigents seeking a divorce be allowed access to the courts and thus an inability to pay filing fees can not preclude them from exercising their consititutional right of freedom of choice. Boddie v. Connecticut, 401 US 371 (1971).


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"Political reasons have not the requisite certainty to afford juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under a government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of that it ought to mean." Dred Scott v.Sanford, 19 How. 393, 620 (1857) (Curtis, J., dissenting).
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