![]() Procedural Due Process issues involve an analysis of the procedure required by the Constitution when states seek to deprive people of life, liberty or property.ĮXAMPLE: Westernstate passes a law forbidding individuals from using nail clippers to cut their nails and requiring instead that only scissors be used. Substantive Due Process issues involve the states’ power to regulate certain activities. For example, in a criminal case the prosecution carries the burden of proof and must prove every element of the crime “beyond a reasonable doubt.” In most civil cases the plaintiff generally carries the burden of proof but must prove every element of her claim only by “a preponderance of the evidence,” which is far short of “beyond a reasonable doubt.”Įvery Due Process Clause analysis begins with the question “Has the government deprived some person of life, liberty, or property?” If there has been no government action, or if there has been no deprivation, then there cannot be a Due Process issue substantive or procedural. In addition to who carries the burden, the burden can be of different loads. The party who must so demonstrate is said to have the burden of proof. ![]() In every case one party or another has the onus of demonstrating the truth of some fact or another. While legislatures often overrule an area of common law by enacting a statute, and while courts often overrule an area of common law by refusing to follow it further or by handing down a decision which makes use of a competing principle, the common law carries with it the force of law and is generally binding on courts within that jurisdiction. The common law is that body of rules and principles developed through the courts over time. The two sources of law are statutory law and common law. Most Due Process issues involve state laws. The Due Process Clause of the Fifth Amendment applies to the federal government. The Fourteenth Amendment reads, in part, that no state shall “deprive any person of life, liberty, or property, without due process of law.” This applies to the states and to local governments. The Government's Power of Eminent Domain to Condemn Private Property.
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