Since Gov. Dannel Malloy announced his intention to issue an executive order barring people who appear on the federal government’s “no-fly” list from buying guns, a debate has ensued about whether such an order would violate a person’s right to “due process.” The purpose of this post is not to join that debate, but instead to help non-lawyer readers understand what the “due process” debate is really about.

Two amendments of the U.S. Constitution–the Fifth and the Fourteenth–forbid the government to deprive any person of “life, liberty or property” without “due process” of law. The Fifth Amendment applies to the federal government and the Fourteenth applies to state and local governments. Both trace their routes to the Magna Carta. But what is “due process’ and why is it important?

In its simplest form, due process is about fairness and the rule of law. It protects individuals against arbitrary government actions. In general, before the government can deprive a person of his life, liberty or property, due process requires that the government give the person notice of the government’s intentions and an opportunity to be heard.

  • An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Mullane v. Central Hanover Bank & Trust Co., et al., 339 U.S. 306 (1950).  See also Mathews v. Eldridge424 U.S. 319 (1976) (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”)

Due process, however, is not “one size fits all.” The specific “process” that a person is “due” varies depending on the nature and extent of the deprivation and the government’s reasons for seeking the deprivation. Mathews v. Eldridge, supra (“[D]ue process is flexible, and calls for such procedural protections as the particular situation demands.”)

For example, before the state can deprive a person of his life or liberty for violating a criminal law, the person is entitled to notice of the specific charges against him, a jury trial, the right to call witness and cross-examine the state’s witnesses.  Due process in the criminal context also requires the state to prove its case beyond a reasonable doubt, the most rigorous burden of proof under the law.  However, in other instances, such as certain administrative hearings, the proceedings are often informal, a party may only be entitled to present a written or oral statement of the reasons why he objects to the state’s actions, and lower burdens of proof usually apply.

What values or interests does due process serve? Two are particularly noteworthy.

First, the procedural rights afforded by due process increase the likelihood that the government’s action is accurate and correct. The government may be mistaken in its reasons for believing that a person committed a crime or that his social security, medicaid or unemployment benefits should be terminated. Fair procedures increase the likelihood that the outcome of the hearing and government action is factually and legally correct. Due process thus serves an important truth-finding function.

Second, due process serves the important value of respect for human dignity. All persons have a dignitary interest in being heard, in telling their side of the story, before the government takes some action that adversely affects them.

In short, due process means procedural fairness, which is intended to ensure the accuracy of governmental proceedings intended to deprive a person of life, liberty or property.  Due process is also intended to protect human dignity.  (There is also substantive component to due process jurisprudence, but that it is a post for another day.)

Dan Klau is an attorney with McElroy, Deutsch, Mulvaney & Carpenter, LLP; the immediate Past President of the Connecticut Foundation for Open Government and is a member of the board of the Connecticut Council on Freedom of Information.

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