Individual rights - Due process

Learning Outcomes

This article explains core MBE‑relevant due process doctrine, including:

• How the Fifth and Fourteenth Amendments limit government deprivations of life, liberty, or property, and why state action matters
• The distinction between procedural and substantive due process, and how examiners signal which doctrine is being tested
• What counts as a protected life, liberty, or property interest, with emphasis on public employment, benefits, and licenses
• How to determine whether a government act qualifies as an intentional deprivation and when post‑deprivation remedies are sufficient
• How to apply the Mathews balancing test to decide the timing and scope of hearings and other procedural safeguards
• How due process principles operate in classic MBE fact patterns involving welfare termination, school discipline, public employment, and licenses
• How to identify fundamental rights implicated by a regulation, distinguish them from non‑fundamental interests, and select the correct scrutiny
• How strict scrutiny, rational basis, and related standards function in substantive due process analysis and overlap with equal protection
• How modern doctrine treats abortion, intimate conduct, travel, voting, and parental rights after key Supreme Court decisions
• Strategies for quickly classifying due process questions on the MBE and eliminating distractor answers that misstate the applicable test

MBE Syllabus

For the MBE, you are required to understand constitutional protections for individuals against government action, with a focus on the following syllabus points:

• Application of the Due Process Clauses to federal, state, and local government (state action requirement)
• Procedural due process: protected interests, “deprivation,” and required procedures
• Substantive due process: fundamental vs non‑fundamental rights
• Levels of scrutiny (strict scrutiny and rational basis) in due process analysis
• Interaction of due process with equal protection and other constitutional doctrines (e.g., voting, travel, retroactive legislation)

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT a fundamental right protected by substantive due process?
   1. The right to marry
   2. The right to vote
   3. The right to pursue a specific occupation
   4. The right to use contraception
2. If a state terminates a public employee who can only be fired "for cause," what process is generally required under procedural due process?
   1. No process is required
   2. Notice and an opportunity to respond before termination
   3. Only a post-termination hearing
   4. A jury trial before termination
3. A state passes a law banning all persons from owning handguns. Which level of scrutiny applies if challenged under substantive due process?
   1. Rational basis
   2. Intermediate scrutiny
   3. Strict scrutiny
   4. No scrutiny; the law is presumed valid
4. Which of the following best describes "property" for procedural due process purposes?
   1. Only real estate
   2. Any government benefit a person has a legitimate claim to
   3. Only physical possessions
   4. Any expectation of future employment

Introduction

Due process is a core constitutional protection that limits how government may deprive individuals of life, liberty, or property. The Due Process Clause of the Fifth Amendment applies to the federal government; the Due Process Clause of the Fourteenth Amendment applies to states and localities. Most individual‑rights questions on the MBE involve these clauses.

Key Term: Due Process Clause
The constitutional provision in the Fifth and Fourteenth Amendments that prohibits government from depriving any person of life, liberty, or property without due process of law.

Due process has two distinct aspects:

• Procedural due process: focuses on how the government acts—the fairness of the procedures used.
• Substantive due process: focuses on what the government is doing—whether the substance of a law unreasonably interferes with fundamental rights.

Key Term: State Action
Action by the federal, state, or local government (or its officials). Except for the Thirteenth Amendment, constitutional due process protections apply only when there is state action, not purely private conduct.

In addition, most of the protections in the Bill of Rights apply to the states through “incorporation” into the Fourteenth Amendment’s Due Process Clause. For due process questions, assume that state and local governments are generally bound by the same individual‑rights constraints as the federal government, subject to the state action requirement.

When you see a due process issue, move through these threshold questions:

• Is there state action (federal, state, or local government, or an official)?
• Is the complaint about procedures (procedural due process) or the substance of a law (substantive due process)?
• Is a protected life, liberty, or property interest at stake?
• If so, what standard of review applies, and what process (if any) is required?

A further distinction is important:

• When the government is making general rules (e.g., setting license requirements, designing benefit formulas), individuals are not entitled to individualized notice and hearing about the rule itself. Any challenge is usually substantive due process or equal protection.
• When the government is applying a rule to a specific person (e.g., revoking a license, firing an employee, terminating benefits), procedural due process may require individualized notice and a hearing.

Procedural Due Process

Procedural due process ensures that government follows fair procedures before intentionally depriving a person of life, liberty, or property. The precise procedures required are context‑specific.

Key Term: Procedural Due Process
The requirement that government use fair procedures—such as notice and a meaningful opportunity to be heard before a neutral decisionmaker—before intentionally depriving a person of life, liberty, or property.

Three threshold ideas:

• There must be state action.
• There must be a protected life, liberty, or property interest.
• There must be a deprivation of that interest (not a mere accident).

If those are satisfied, the next step is to determine what process is due.

What Interests Are Protected

The government must provide due process before depriving a person of life, liberty, or property.

Key Term: Life, Liberty, or Property
The interests protected by the Due Process Clauses; includes physical safety and freedom, as well as statutory or contractual entitlements such as certain jobs, benefits, education, and licenses.

Life

• The “life” interest is primarily implicated in death penalty cases.
• Capital punishment requires especially robust procedural protections, including:
  • A bifurcated guilt and penalty phase,
  • The opportunity to present aggravating and mitigating evidence, and
  • Reliable fact‑finding before death can be imposed.

You do not need the detailed capital punishment doctrine for the MBE; know that the death penalty always raises heightened due process concerns.

Liberty

Liberty means more than just freedom from prison bars.

Key Term: Liberty Interest
A significant freedom from governmental restraint, including physical confinement and certain important legal rights recognized by statute or the Constitution.

Liberty interests include:

• Physical confinement:
  • Incarceration after conviction
  • Probation or parole revocation
• Involuntary commitment to a mental institution:
  • Adults are entitled to an adversarial hearing before long‑term commitment, and the state must prove the need for confinement by clear and convincing evidence.
  • Minor children cannot be institutionalized by parents alone; a neutral fact‑finder must screen the commitment decision.
• Significant restraints on freedom, such as institutionalization of minors or severe restrictions in prison that impose an “atypical and significant hardship” compared with ordinary prison life.
• Important legal rights, such as:
  • The right to drive (revocation of a driver’s license),
  • The right to live in the community rather than in prison or an institution.
• Government punishment for exercise of constitutional rights:
  • Example: A public employee fired for protected speech has a liberty interest in not being punished for exercising First Amendment rights.
• Some changes in legal status that significantly affect freedom of action or association.

Reputational harm alone is not a liberty deprivation. Being labeled a “shoplifter” or placed on a “troublemaker” list, by itself, is not enough. There must be:

• Stigma + a tangible alteration of legal status (often called “stigma plus”), such as:
  • Being formally barred from certain employment as a result of the stigmatizing statement, or
  • Loss of a previously held government position or right.

Property

Property interests are the most frequently tested on the MBE.

Key Term: Property Interest
A legitimate claim of entitlement created by law, contract, or established practice to continued receipt of a benefit or job, as opposed to a mere expectation or desire.

The Due Process Clauses do not create property interests; they protect those created by other sources such as statutes, regulations, contracts, or official policies. Key examples:

• Public education:
  • When school attendance is compulsory, students have an entitlement to continue attending public school, so suspension or expulsion implicates a property interest.
• Welfare benefits:
  • Once a person has been found eligible and is receiving needs‑based benefits, there is a property interest in continued receipt.
• Disability and similar benefits:
  • Disability benefits, once granted under objective statutory criteria, are protected property interests.
• Public employment:
  • There is a property interest in continued employment when there is:
    • An explicit contract for a fixed term,
    • A statute, regulation, or ordinance providing for discharge only “for cause,” or
    • A clear practice or mutual understanding that employees are only fired for cause (e.g., tenure).
  • There is no property interest in an at‑will government job that can be terminated for any lawful reason.
• Government licenses and permits:
  • Professional licenses (law, medicine, barber, etc.) and other licenses necessary to pursue a calling, once issued under objective criteria, are protected property.
  • The initial application for a license is usually not a property interest unless the law severely limits the government’s discretion.

Contrast with situations where no property interest exists:

• At‑will public employment;
• Mere applications for jobs or benefits;
• Discretionary government benefits, where officials have broad discretion to grant or deny.

Exam tip: On MBE questions about government jobs, look for language like “tenure,” “for cause,” “fixed term,” or an official practice of renewal. Those signal a property interest.

Deprivation and Government Fault

Not every loss of life, liberty, or property is a constitutional deprivation.

• The challenged act must be intentional or at least more than random negligence.
  • An accidental injury by a government employee (e.g., being hit by a municipal garbage truck) does not violate due process.
• Even when the act is intentional, there may be no constitutional deprivation if the state provides an adequate post‑deprivation remedy for a random, unauthorized act.
  • Example: A prison guard steals a prisoner’s radio. If state tort law allows a meaningful suit for damages, there is typically no procedural due process violation, because it was impracticable to give a pre‑deprivation hearing and there is an adequate remedy afterwards.
• When the government acts pursuant to an established procedure or policy (e.g., a statute allowing immediate seizure of property), procedural due process usually requires pre‑deprivation process, not merely a later tort remedy.

Courts also insist on a fair, neutral decisionmaker. Due process is violated if:

• A judge has a direct financial interest in the outcome; or
• There is a serious risk of actual bias under a realistic appraisal of human tendencies (e.g., a judge elected with massive support from a litigant appearing before the court).

What Process Is Due

Once a protected interest and a deprivation are established, the question becomes: How much process is constitutionally required?

Key Term: Mathews Balancing Test
The three‑factor test used to determine what process is due: (1) the private interest affected, (2) the risk of erroneous deprivation and the value of additional safeguards, and (3) the government’s interest in efficiency and avoiding burdens.

The Supreme Court weighs:

• The private interest at stake:
  • How important is the life, liberty, or property interest to the individual?
• The risk of erroneous deprivation under current procedures and the probable value of additional safeguards:
  • How likely is the government to make a mistake without more process?
• The government’s interests:
  • Administrative costs, efficiency, public safety, and other burdens that additional procedures would impose.

At a minimum, due process usually requires:

• Notice reasonably calculated to inform the person of the proposed action; and
• An opportunity to be heard at a meaningful time and in a meaningful manner before a neutral decisionmaker.

The formality of the hearing can range from an informal meeting to a full evidentiary hearing, depending on the Mathews balancing.

Timing: Pre‑ vs Post‑Deprivation Hearings

Due process does not always require a full evidentiary hearing before the government acts. Timing depends on the Mathews balance.

• Pre‑deprivation hearing is generally required when:

  • The interest is very important to basic subsistence (e.g., welfare payments),
  • The risk of erroneous deprivation without a hearing is high, and
  • It is feasible for the government to hold a hearing first.

• Post‑deprivation hearing may suffice when:

  • There is a significant, immediate government interest (e.g., public safety),
  • Pre‑deprivation hearings would be impracticable or too burdensome, and
  • The post‑deprivation hearing is prompt and meaningful and can provide full relief (e.g., back pay, retroactive benefits).

Examples (high‑yield for the MBE):

• Welfare benefits:

  • Require an evidentiary hearing before termination. The recipient must have timely, adequate notice of reasons, an opportunity to confront adverse witnesses, and to present evidence orally.

• Disability benefits:

  • A full evidentiary hearing may occur after termination if the recipient has prior notice and an opportunity to respond in writing, and if successful claimants receive retroactive benefits.

• Public education – disciplinary suspension:

  • For short suspensions (around 10 days), due process requires:
    • Notice of the charges, and
    • An informal opportunity to tell the student’s side of the story before or soon after the suspension.
  • For expulsions or long‑term suspensions, more formal procedures may be required.

• Public education – academic dismissal:

  • Dismissal for academic reasons (e.g., poor grades in professional school) requires only a careful and deliberate academic evaluation, not a full adversarial hearing.

• Driver’s license revocation:

  • Non‑emergency revocations (e.g., for repeated traffic offenses) generally require a pre‑deprivation hearing.
  • For immediate dangers—such as refusing a breathalyzer under implied‑consent laws—temporary suspension may be imposed first, followed by a prompt post‑suspension hearing.

• Creditors’ remedies:

  • Statutes that allow prejudgment seizure of property (attachment, garnishment, replevin) usually must provide for notice and a prompt hearing, except in “extraordinary situations” (e.g., seizure of misbranded drugs) where immediate government action is essential.

• Civil forfeiture of real property:

  • Absent exigent circumstances, due process requires notice and an opportunity for some type of hearing before the government seizes real property alleged to be connected to crime.
  • Personal property, which is easily moved or destroyed, may be seized first with a prompt post‑seizure hearing.

• Parental status litigation:

  • Termination of parental rights requires fundamentally fair procedures, including notice and an opportunity to present evidence. Because parental rights are highly valued, many states provide counsel, and federal constitutional law requires at least a fair procedure before termination.
  • Paternity suits and proceedings brought by unwed fathers to establish or protect their rights may require hearings, with more protection for fathers who have established a substantial relationship with the child.

• Detention of citizen enemy combatants:

  • A citizen held as an “enemy combatant” must have a meaningful opportunity to contest the factual basis for detention before a neutral decisionmaker, though procedures may be tailored in light of wartime and security concerns.

Public Employment (Heavily Tested)

Public employment is a common procedural due process scenario.

Where a public employee may be terminated only “for cause,” due process generally requires:

• Before termination:

  • Notice of the charges; and
  • Some opportunity to respond (an informal meeting or chance to submit written arguments). This “pre‑termination hearing” can be quite limited if a full post‑termination process is available.

• After termination:

  • A more elaborate hearing, with an opportunity to present witnesses and evidence and to challenge the employer’s reasons. If the termination is found improper, the employee can be reinstated with back pay.

If there is a strong reason not to keep the employee on the job (e.g., a police officer indicted for a serious crime), the employer may suspend or even terminate immediately, provided that:

• The post‑termination hearing is prompt, and
• It can provide full relief (reinstatement with back pay) if the charges are unfounded.

Due Process and Access to Courts

Due process, often combined with equal protection, can require waiver of court fees for indigent litigants when the fees would effectively deny a fundamental right, such as:

• The right to marry or divorce,
• The right to appeal termination of parental rights, or
• Ballot access in certain circumstances.

For rights that are not fundamental (e.g., bankruptcy discharge, judicial review of welfare decisions), the government need not waive filing fees.

Waiver of Procedural Due Process

Individuals can waive due process rights, but the waiver must be:

• Voluntary, and
• Typically knowing—made with an understanding of the nature of the rights being given up.

Example: A person may sign a valid agreement to arbitrate certain disputes, thereby waiving a judicial hearing, so long as the process in arbitration is fundamentally fair.

Worked Example 1.1

A state statute provides that tenured public school teachers may be dismissed only for “cause” after a hearing. A tenured teacher is summarily fired for alleged misconduct without any chance to respond beforehand. A post‑termination grievance procedure is available, but it will not be held for several months. The teacher sues, alleging a due process violation.

Answer:
The teacher has a property interest in continued employment because she can be fired only for cause. Due process generally requires notice and some opportunity to respond before termination, plus a more complete hearing afterwards. A several‑month delay before any hearing makes the post‑deprivation process unlikely to be “prompt and meaningful.” The summary termination likely violates procedural due process.

Worked Example 1.2

A federal law requires all cataloging employees of the federal library system to pass a reading comprehension test. Employees who fail may be reassigned to lower‑paying positions with no hearing provided. A non‑probationary employee fails the test and is reassigned to a lower‑grade job without a hearing and sues.

Answer:
Because the employee is not at‑will and has an established position, he has a property interest in his current grade and job status. The federal government (a state actor) is intentionally depriving him of that interest. Under the Fifth Amendment Due Process Clause, he is entitled to notice and an opportunity to be heard before or promptly after the reassignment. His strongest constitutional claim is procedural due process under the Fifth Amendment.

Worked Example 1.3

A prison guard intentionally destroys a prisoner’s radio, contrary to prison regulations. State law permits a damages suit against guards for intentional property damage. The prisoner sues in federal court claiming a violation of procedural due process.

Answer:
The prisoner has a property interest in his personal belongings, and the guard intentionally destroyed the radio. However, this is a random, unauthorized act by a state employee, and the state provides an adequate post‑deprivation remedy (a damages action). Under these circumstances, there is no procedural due process violation because it would be impracticable to provide a pre‑deprivation hearing for this type of misconduct, and the state’s tort remedy satisfies due process.

Worked Example 1.4

A state statute authorizes the sheriff to seize a borrower’s car upon the lender’s ex parte application, without prior notice or hearing. The borrower’s only recourse is a lawsuit for return of the car, which may not be heard for several months. The lender applies ex parte, the sheriff seizes the car, and the borrower sues, alleging denial of procedural due process.

Answer:
The borrower has a property interest in the car, and the seizure is an intentional deprivation by a state actor. The statute allows seizure without prior notice or a prompt post‑seizure hearing. Under the Mathews test, the borrower’s interest in continued use of the car is substantial, the risk of error is high when only the lender’s version is heard, and the state’s interest in ex parte seizure is relatively modest. The absence of pre‑seizure notice and a prompt opportunity to be heard likely violates procedural due process.

Worked Example 1.5

A state files a petition to terminate a mother’s parental rights based on allegations of neglect. The state provides her with notice and a hearing but refuses to appoint counsel because state law provides appointed counsel only in criminal cases. The mother, who is indigent, challenges the termination.

Answer:
Parental rights are a highly protected liberty interest, and termination permanently severs that relationship. Due process requires fundamentally fair procedures before terminating parental rights. Whether counsel must be appointed in a particular case depends on the Mathews balancing, but where the issues are complex and the parent faces permanent loss of the relationship, due process may require appointment of counsel for indigent parents. The mother has a strong procedural due process argument that the proceedings were fundamentally unfair without counsel.

Substantive Due Process

Substantive due process protects certain fundamental rights from unjustified government interference, regardless of the procedures used. It is concerned with the substance of laws and regulations.

Key Term: Substantive Due Process
The doctrine that some rights are so important that the government may not infringe them unless the law is narrowly justified under a demanding standard of review, typically strict scrutiny.

Typical substantive due process patterns:

• The government enacts a law that limits everyone’s ability to engage in an activity (no classification between groups), and
• A challenger claims that the law unreasonably interferes with a fundamental right.

If the law draws lines between groups (e.g., married vs unmarried, residents vs non‑residents), the same analysis may instead be framed under the Equal Protection Clause, though the level of scrutiny is often the same.

Key Term: Fundamental Right
A right deeply rooted in the nation’s history and tradition or implicit in the concept of ordered liberty, such that government may not substantially interfere with it unless strict scrutiny is satisfied.

Levels of Scrutiny

Substantive due process uses the familiar tiers of scrutiny that also appear in equal protection analysis.

Key Term: Strict Scrutiny
The highest level of judicial review: a law will be upheld only if it is necessary (narrowly tailored) to achieve a compelling governmental interest. The government bears the burden of proof.

Key Term: Rational Basis Review
The most deferential level of review: a law will be upheld if it is rationally related to a legitimate governmental interest. The challenger bears the burden of proof.

• Strict scrutiny applies when a law substantially burdens a fundamental right.

  • The law must be narrowly tailored—effectively the least restrictive means—to achieve a compelling government interest.
  • The government bears the burden and usually loses.

• Rational basis applies when a law affects non‑fundamental interests:

  • Economic regulation,
  • Occupational licensing,
  • Most social‑welfare rules,
  • Most ordinary zoning decisions.
  • The law is presumed valid and will be upheld if any conceivable legitimate purpose could rationally support it.

Intermediate scrutiny exists as a formal category, but it is used primarily in equal protection cases (e.g., for gender and legitimacy). It has played little role in pure substantive due process decisions.

To analyze a substantive due process claim, ask:

• What right or interest is being restricted?
• Is that right fundamental?
  • If yes → strict scrutiny.
  • If no → rational basis.

Fundamental Rights under Substantive Due Process

The Court has recognized several categories of fundamental rights, many involving personal privacy and family autonomy. For MBE purposes, know these core categories.

Marriage

The right to marry is fundamental and includes:

• The choice whether and whom to marry,
• Protection for interracial and same‑sex marriage, and
• Protection against substantial interference by the state.

States can impose reasonable regulations on marriage (age limits, prohibition of close relatives marrying, procedural requirements like licenses), but substantial interference—for example, prohibiting certain classes of people from marrying without compelling justification—triggers strict scrutiny.

Examples of unconstitutional interferences:

• A law forbidding people who owe child support arrears from marrying.
• A law denying marriage to prisoners without adequate justification.

Family and Child‑Rearing

Substantive due process protects family relationships and parental decision‑making:

• The right of close and extended family members to live together in a single household.
  • Zoning ordinances that exclude traditional family members (e.g., a grandparent living with grandchildren) are usually invalid.
• The right of parents to direct the upbringing and education of their children, including:
  • Choosing private or religious schools,
  • Making certain child‑rearing decisions (religious instruction, language use, etc.),
  • Some decisions about discipline, subject to reasonable regulation.

The state may intervene to protect children from abuse or neglect, but it must justify substantial interference with parental autonomy and provide fair procedures in termination or custody proceedings.

Procreation and Contraception

The Court has recognized fundamental rights relating to procreation and contraception:

• The right to decide whether to have children.
• The right of both married and unmarried individuals to purchase and use contraception.

Government attempts to ban or severely limit access to contraception ordinarily face strict scrutiny.

Intimate Sexual Conduct

Consensual, noncommercial sexual intimacy between adults has strong constitutional protection. Although the Court has not consistently labeled it a “fundamental right,” it has held that the government lacks any legitimate interest in criminalizing purely private, consensual adult sexual conduct.

• Laws criminalizing same‑sex intimacy between consenting adults violate substantive due process because they seek to impose a particular moral code without a legitimate state interest.

Travel

The right to travel, particularly interstate travel, is fundamental. It encompasses:

• The right to enter and leave states,
• The right to be treated as a welcome visitor when temporarily present, and
• For new residents, the right to be treated like other citizens of the state after establishing residency.

Consequences for substantive due process:

• Long durational residency requirements that penalize new residents for seeking basic benefits (e.g., welfare, essential medical care) are subject to strict scrutiny.
• Reasonable residency requirements for voting, tuition classification, or divorce jurisdiction may be permissible if justified and not unduly burdensome.

International travel is protected, but not as strongly; restrictions on international travel are generally reviewed under rational basis.

Voting and Ballot Access

The right to vote in state and federal elections is fundamental.

Implications:

• Severe restrictions on the right to vote or on access to the ballot are subject to strict scrutiny.
• Examples of unconstitutional restrictions:
  • Poll taxes in state or federal elections,
  • Long residency requirements for voting without compelling justification,
  • Rules that effectively bar viable candidates from the ballot without sufficient justification.

Less severe regulations (e.g., reasonable registration deadlines, age and citizenship requirements) may be upheld under less demanding review.

Refusal of Medical Treatment and Bodily Integrity

Substantive due process recognizes a significant liberty interest in refusing unwanted medical treatment, including life‑sustaining treatment.

• A competent adult generally may refuse medical treatment, even if it will result in death.
• States may require clear and convincing evidence of a patient’s wishes before withdrawing life‑sustaining treatment from an incapacitated person.

However:

• There is no fundamental right to physician‑assisted suicide. States may prohibit assisted suicide, and such laws are reviewed under rational basis.

Abortion (Post‑Dobbs Legal Framework)

Historically, the Court recognized a fundamental right to choose abortion prior to fetal viability. In 2022, the Court held that the federal Constitution does not confer a right to abortion and that regulation of abortion is largely a matter for the states.

For current exam purposes:

• There is no freestanding federal fundamental right to abortion under substantive due process.
• State abortion regulations are generally evaluated under rational basis, unless:
  • The regulation implicates other fundamental rights (e.g., travel, speech), or
  • It employs a suspect classification (e.g., race).

Always read MBE questions carefully; if they describe the law using older “undue burden” terminology, focus on what the question actually asks (e.g., level of scrutiny, who bears the burden) and choose the answer that best matches current doctrine as described in the question.

Non‑Fundamental Interests

When the interest affected is not fundamental, courts apply rational basis review. The law will be upheld if it is rationally related to any legitimate governmental purpose, and the challenger bears the burden of proof.

Examples of non‑fundamental interests:

• Pursuing a specific occupation (e.g., becoming a sonographer, barber, or interior designer),
• Receiving a certain level or type of government benefit,
• Economic and business regulation (price controls, licensing requirements, rent control),
• Ordinary land‑use and zoning rules that do not extinguish all economically viable use of property,
• Most lifestyle choices that are not deeply rooted in history and tradition.

Courts give legislatures wide latitude under rational basis. The law need not be perfectly tailored; it can be overinclusive or underinclusive, and still survive.

Worked Example 1.6

In response to a widely publicized mistake by a one‑year‑trained sonographer, a state increases the education required for a sonographer license from one year to two years with no “grandfathering” for current students. A clerk who started the one‑year program before the law’s passage sues, claiming a violation of substantive due process.

Answer:
The right to work in a specific occupation is not a fundamental right. The statute is an economic regulation reviewed under rational basis. The state need only show it could rationally believe that longer training protects patient health and safety. The law is constitutional as applied to the clerk.

Worked Example 1.7

A state law provides that new residents must live in the state for one year before becoming eligible for non‑emergency medical care under a state‑funded health program. A new resident who needs urgent but not life‑saving surgery challenges the law under substantive due process.

Answer:
The law penalizes new residents compared to long‑term residents, burdening the fundamental right to interstate travel. Strict scrutiny applies. The state must show the one‑year waiting period is necessary to achieve a compelling interest and that no less restrictive alternative would work. That is very difficult to prove. The law is likely unconstitutional.

Worked Example 1.8

A city passes an ordinance banning all unmarried adults from living together. Unmarried adults challenge the ordinance on due process grounds.

Answer:
The choice of household companions among unrelated adults is not a clearly recognized fundamental right (unlike the right of extended families to live together). The ordinance does not involve a suspect classification. Rational basis review applies. Unless the law is arbitrary or irrational, it will be upheld. The ordinance is likely constitutional under substantive due process, though it could raise other issues depending on how it is applied.

Worked Example 1.9

A state enacts a law imposing a $100 fee on all voters who wish to cast a ballot in state elections. The fee is justified as a contribution toward election administration costs. An indigent voter challenges the law.

Answer:
The law burdens the fundamental right to vote by conditioning the exercise of that right on payment of a fee (similar to a poll tax). Restrictions that significantly burden voting are subject to strict scrutiny. Raising revenue is not a compelling interest in this context, and the law is not necessary to achieve any compelling goal. The fee violates substantive due process (and equal protection) protections for the right to vote.

Worked Example 1.10

A state passes a statute retroactively shortening the statute of limitations for certain tort actions so that some existing—but not yet filed—claims are barred immediately. A plaintiff whose claim is extinguished brings a substantive due process challenge.

Answer:
There is no fundamental right to any particular statute of limitations. Retroactive civil legislation that does not involve fundamental rights or suspect classifications is reviewed under rational basis. If the state can articulate any legitimate interest (e.g., preventing stale claims, reducing litigation burdens) and the retroactive change is not arbitrary, the law will likely be upheld. Substantive due process does not forbid all retroactive laws; it requires only that they be rational.

Levels of Scrutiny in Due Process Cases

For exam purposes, remember:

• Strict scrutiny (government’s burden):

  • Applies when a law:
    • Substantially interferes with a fundamental right (marriage, family, procreation, contraception, travel, voting, certain privacy rights), or
    • In equal protection, uses a suspect classification (race, national origin, state alienage in most contexts).
  • The law must be necessary (narrowly tailored) to achieve a compelling government interest.
  • Most laws fail this test.

• Rational basis (challenger’s burden):

  • Applies to all other due process claims, both procedural and substantive.
  • The law must be rationally related to a legitimate governmental interest.
  • The law is presumed valid, and courts are highly deferential; virtually any plausible justification will suffice.

Courts tolerate “loose‑fitting” laws under rational basis. A law can attack a problem piecemeal—regulating some but not all related conduct—without violating due process.

Exam Warning

Laws that classify based on suspect categories (race, national origin) or that treat different groups differently often raise equal protection issues as well as due process issues. By contrast:

• A law that burdens everyone’s ability to exercise a right (e.g., a law banning all people from purchasing contraception) is primarily a substantive due process problem.
• A law that burdens only some people’s ability to exercise a right (e.g., a law allowing only married people to use contraception) implicates equal protection, and possibly substantive due process as well.

On the MBE, you may not need to label the clause perfectly if the answer choice focuses on the correct level of scrutiny and the correct interest. When both due process and equal protection are plausible, answers will often describe the correct scrutiny without forcing you to choose between clauses.

Revision Tip

When analyzing a due process question, move systematically:

• Is there state action?
• Is a life, liberty, or property interest at stake?
• Is the challenge about procedures or about the substance of a law?
• If substantive, is the interest fundamental?
  • If yes → apply strict scrutiny (government’s burden).
  • If no → apply rational basis (challenger’s burden).
• If procedural, apply the Mathews balancing test to decide what process is due and whether it must precede the deprivation.

This structured approach helps avoid being misled by distractor answer choices.

Summary

Due process protects individuals against unfair government deprivations of life, liberty, or property.

• Procedural due process requires fair procedures—notice, a meaningful opportunity to be heard, and a neutral decisionmaker—before intentional deprivations of protected interests. What process is required depends on a balancing of:
  • The importance of the individual’s interest,
  • The risk of erroneous deprivation and the value of additional safeguards, and
  • The government’s interest in efficient and economical administration.
• Substantive due process examines the substance of laws that apply to everyone. When government action substantially interferes with a fundamental right—such as marriage, family relationships, procreation, contraception, travel, voting, or parental control—strict scrutiny applies, and the government usually loses. When non‑fundamental interests, such as economic regulations or occupational licensing, are involved, courts apply rational basis review and almost always uphold the law.

Recognizing whether a right is fundamental and whether the issue is procedural or substantive allows you to select the correct level of scrutiny and reach the correct outcome on MBE questions.

Key Point Checklist

This article has covered the following key knowledge points:

• Due process limits federal, state, and local government action; state action is required except under the Thirteenth Amendment.
• Protected interests include life, liberty, and property; property interests arise from legitimate claims of entitlement, not mere expectations or desires.
• Liberty interests include freedom from physical confinement, freedom from certain types of institutionalization, and freedom to exercise constitutional rights; mere reputational harm is insufficient without “stigma plus.”
• A due process “deprivation” must be intentional; random negligence by government employees, combined with adequate post‑deprivation remedies, usually does not create a constitutional violation.
• Procedural due process typically requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner before a neutral decisionmaker.
• The Mathews balancing test determines how much process is due and whether a hearing must precede or may follow the deprivation.
• Specific applications include termination of welfare and disability benefits, public employment, school discipline, driver’s license revocation, civil forfeiture, and parental status cases.
• Substantive due process protects fundamental rights such as marriage, family, procreation, contraception, travel, voting, and parental control of child‑rearing, as well as certain bodily‑integrity interests.
• Fundamental rights trigger strict scrutiny; non‑fundamental interests are reviewed under rational basis.
• The burden of proof lies with the government under strict scrutiny and with the challenger under rational basis.
• Many due process problems can also be framed as equal protection problems; focus on whether the law applies to everyone or classifies among groups, and identify the correct level of scrutiny.

Key Terms and Concepts

• Due Process Clause
• State Action
• Procedural Due Process
• Life, Liberty, or Property
• Liberty Interest
• Property Interest
• Mathews Balancing Test
• Substantive Due Process
• Fundamental Right
• Strict Scrutiny
• Rational Basis Review