Constitution 101: Due Process

What It Is, Why It Matters, and Why It's Everywhere Right Now

Welcome to our crash course in the U.S. Constitution — without the law school price or the weird professors. Each issue will tackle a different big idea that’s shaped American life: free speech, due process, equal protection, search and seizure, etc.. Expect real-world examples, understandable explanations, and the occasional lawyer joke (now you’ve been warned, so you can’t be upset). Whether you're a news junkie, a student, or just someone who wants to finally understand what “strict scrutiny” actually means, you’ll leave each issue a little smarter — and way more equipped to fight mistruths. The law was meant to be understood by the people. This series is here to prove it.

Today’s issue: Due Process: What It Is, Why It Matters, and Why It’s Everywhere Right Now.

Next issue: The Federal Courts: How They Work, What They Do, And Why They’re Losing American Confidence.

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Part 1: Due Process 101

What Is Due Process?

At its core, due process is the idea that the government can’t just do whatever it wants to you — throw you in jail, take your stuff away, strip away your rights, etc. — without giving you a fair procedure first. It’s like the government promising, "Hey, if we’re going to really mess up your day, we’ll at least do it in a civilized way."

Due process is the legal equivalent of insisting someone take you to dinner before breaking up with you. You might still get dumped — or convicted, or fined, or fired — but they have to follow the rules, and you get a real chance to tell your side of the story first.

Due process has two major elements:

• Notice: Like the government saying, “Hey, just FYI – we’re about to do something you won’t like.” It requires the government to tell you what’s happening and why in a clear and timely manner. And there are also certain requirements that go along with it, such as when notice can be given.

• Opportunity to be heard: The government is also required to give you a real chance to explain yourself – fight back, challenge the decision, etc. That can include a variety of different measures for doing so.

Where Does Due Process Come From?

Due process is generally derived from two sections of the Constittion:

• The Fifth Amendment says no one shall be "deprived of life, liberty, or property, without due process of law" — against the federal government.

• The Fourteenth Amendment says the same thing — but applies it to the states.

And despite the commonly thrown around notion that we invented due process…we didn’t. The concept was basically taken from English common law, where kings weren’t *supposed* to arbitrarily behead people without a trial. Spoiler art: they did sometimes anyway.

Why Does Due Process Matter?

Without due process, the government could just...do anything to you. Arrest you without charges. Fire you without a hearing. Confiscate your home because someone "didn't like your aesthetic." Deport you to another country.

In short, despite how seemingly small it sounds, due process is what stands between us and total chaos — or, worse, the government treating rights like the toppings bar at a frozen yogurt place: grab whatever you want, skip whatever you don’t. And then be confused how the pricing works at the end (is it by weight? Size? Legitimately asking.)

It’s one of the reasons American democracy, for all its flaws, is still standing after all these years.

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Part 2: Who Has It?

Short answer: everyone in the United States — not just citizens. Non-citizens, including undocumented immigrants, have due process rights too when it comes to things like deportation hearings. That fact seems to have been lost in recent conversations, but it’s a foundational concept in American law.

Non-citizens are entitled to almost everything in the Constitution that citizens are – except voting. It’s a long precedent in American law, but it starts largely with the following landmark case: