Fair Treatment by the Government: Due Process

Authored By: Carl Vinson Institute
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Fair Treatment by the Government: Due Process

This document tells you the following:

  • What is due process and what does it require of the government?
  • Who is protected by due process?
  • What are the different parts of due process that the government must respect?
  • What are arbitrary decisions?
  • What does it mean to have a trial conducted in a fair manner?
  • What is the notice element of due process and what does it mean?
  • What is the hearing element of due process and what does it include?


The founders of our country had great concern for fairness in government and law. In fact, the writers of the Declaration of Independence expressed this concern explicitly when they wrote about equality:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. . . .

Both the U.S. and Georgia constitutions put limits on government in an effort to ensure that each person is treated fairly under the laws. They provide that the government-or anyone using the powers of government-cannot take away "life, liberty, or property" without "due process of law." Moreover, everyone must be given equal protection under the law.

Keep in mind, however, that these provisions are restrictions on government action, and they apply directly only to people acting on behalf of government. These provisions can, however, be extended to private activity by the passage of other laws.


What Is Due Process?

The Due Process Clause of the Fifth Amendment to the U.S. Constitution

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the lasnd or naval forces, or in the Militia, when i actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy or life or limb; nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or peroperty, without due process of law; nor shall private property be taken for public use, without just compensation.

The due process clause requires that the government act fairly in two ways:

1. The government may not take away life, liberty, or property for reasons that are arbitrary (that is, reasons that are illogical, inconsistent, unjust, or impulsive).

2. Even if it has an appropriate reason, the government may take away these rights only in a fair manner (that is, after providing the process that is "due").

In this document, we'll look closely at the key terms "life, liberty, or property," "arbitrary reasons," and "fair manner."

Who is protected by due process? Basically everyone subject to our laws is protected. Protection extends not only to U.S. citizens but also to

• persons from other states and foreign countries (but only under certain circumstances),
•artificial "persons," like corporations, and
•cities and counties under certain circumstances.

Protecting Life, Liberty, and Property

The government-or anyone using government powers-may not take away life, liberty, or property without due process of law.

What is due process of law? It depends on what the laws and courts say it is, and that varies with the situation.


Depriving you of life is the most serious action that can be taken against you. Therefore the government is the most restricted in this action. It is critical that the government act for proper reasons and in a fair manner. Clearly, a person who might be sentenced to death for murder is entitled to the protection of the due process clause. What about the person in the following situation?

SITUATION 1 Sam was drafted into the army during the Vietnam conflict. He did not want to go. After training, he was sent into a heavy combat zone. He was killed.

Wasn't his life "taken by the government" against his will? Does the due process clause apply?

The possibility of a person in the military being killed by the enemy is outside the scope of the due process clause. It was not the government that took Sam's life. Rather, it was taken by the enemy whom he was fighting. He was fighting because he had a duty, imposed by due process of law, to defend his country.

There are, however, situations that involve the military when due process (and equal protection) would apply. The government must choose who will be drafted in a fair manner. If accused of wrongdoing while in the military, a person must be tried fairly. Because of the unique nature of military service, however, many constitutional rights enjoyed by civilians are severely curtailed. Examples are freedoms of speech and assembly.


A government must also meet the requirements of due process when it takes away a person's freedoms.

Confinement. Physical constraint is clearly a substantial loss of liberty. For this reason, there are many restraints on the criminal justice process (discussed later). However, confinement of a person may occur outside the criminal justice system. Does due process apply in situation 2?

SITUATION 2 Everyone knows Herbie. When he is not doing odd jobs, he sits in the park, feeding popcorn to the birds. Everyone knows he is not very smart, but he has never harmed anyone or anything.

Some people are bothered because he stares at them as they walk through the park. They want to put Herbie away. They file a petition with the court to have Herbie committed to a mental hospital.

Is Herbie protected by the due process clause?

Yes, he is. Being placed in an institution against one's will, whether a prison or a mental hospital, involves a loss of liberty. The government must be justified in taking away that liberty.

Individuals who are committed to a mental hospital may present a danger to themselves or to society, or they may be in need of treatment that can be provided only within the hospital. However, in all instances, an individual cannot be deprived of liberty without due process. For Herbie to be committed to a mental hospital, there must be a hearing. He must be notified of it and given an opportunity to say why he should not be confined. Then the judge will make a decision as to whether or not he should be committed.

Individual rights. Constitutional rights such as freedom of speech are also protected by the due process clause. They are considered elements of liberty, meaning that they cannot be limited for arbitrary reasons. The government can, however, regulate the "time, manner, and place" of the exercise of these rights. (The restriction must be necessary and not overly restrictive.)

The due process clause also protects individual rights not actually spelled out in the U.S. Constitution, including the right to enter into contracts, to privacy, and to travel within the United States and move about in public places (see chapter 13).


The last item protected by the due process clause is property. Like the freedom to enter into contracts, the right to own property is basic to our legal system.

What constitutes property may not always be clear. Do you think the following situations show property interests that would be protected by due process?

SITUATION 3 Nora's welfare payments are cut off for several months. It was thought, mistakenly, that she had a new job.

SITUATION 4 Ben and Betty move into a house recently vacated by a person who has not paid his city water bill. Water service is provided to them for a few weeks. Then, late one Friday afternoon, the city cuts it off. Ben and Betty are without water for the entire weekend.

SITUATION 5 The Board of Education is advised that a school security guard had been convicted of a felony. He had not put this information on his employment application. Therefore he is fired without a chance to explain his side of the story.

SITUATION 6 Ken is not doing well at the state university medical school. His academic record is excellent, but his performance with patients is poor. In his final year, Ken appeals a decision not to let him graduate. A group of local physicians evaluate his performance. By a split decision, they recommend that he not be graduated. As a result, he is dropped from medical school.

Whether you have a right in a particular property interest is a question of law. If you feel that such a right was taken from you unfairly, you would need to know the law concerning that property interest. You would usually need to consult an attorney.

Once people receive benefits or services from the state, the law says they have a property interest in them. Drivers' licenses and welfare payments (situation 3) are such benefits. The government is not required by the constitution to provide welfare benefits. However, if it does provide them, it must do so in a fair manner.

Water (situation 4) is provided as a government service. These benefits and services cannot be taken away without due process of law. Many public employees have a property interest in their jobs (situation 5). The school security guard may be entitled to a hearing before he is fired. Ken, on the other hand (situation 6), has the legal right to attend the state university medical school if he is qualified and if space is available for admission, but there is no guarantee that mere attendance will result in graduation.

The Fifth Amendment restricts the right of governments to take property from private individuals for public uses such as for building a highway. This government right is called the power of eminent domain. However, the amendment says the government cannot take property from someone without "just compensation." It protects the individual by requiring that the government act fairly in taking property.

What if a government action reduces the value of property? For example, what if a new airport significantly inhibits a family's use of their property?

The law says that this situation may be a type of "taking," and the family may be entitled to compensation from the government. In addition, the family would be entitled to notice of the taking and would have an opportunity to be heard on the issue of the value of the taking.

Arbitrary Decisions: What Are They?

SITUATION 7 The principal of a high school decided one morning that every student whose name begins with a vowel should walk like a duck when in the school hallways. And, at the same time, he or she must quack. Any such student who didn't do so would be "fined" $10 to be used to help fund the Botany Club.

Was this an arbitrary decision?

Of course it was-for at least three reasons. First, it was arbitrarily imposed. There was no logical or sensible reason for the principal to decide to demean any students by making them act like ducks.

Second, those subject to it were arbitrarily selected. The principal had no reason to single out students whose names began with vowels. There was no indication that those students constituted a group that differed from other students.

Finally, imposing a fine (that is, the "taking" of a student's property) to help fund the Botany Club was also arbitrary. It improperly put a burden on these selected students to fund an activity. Funding the Botany Club should rightly have been done either by all students or by the club members.

In contrast, the state does have a rational basis for laws requiring children to attend school. The state's interest is in seeing that its children receive an education so that they will become productive citizens. The state can require you to go to school, even though this requirement deprives you of your liberty during the school day. The requirement is logically (that is, "rationally") related to a proper interest of the government.

In effect, the due process clause says that if the government chooses to pass laws that put people into certain categories (classify them), it must have a rational basis for its actions. Its reasons cannot be arbitrary, whimsical, or irrational.

What Is a Fair Manner?

The government may act to take life, liberty, or property for an adequate reason, but it must do so in a fair-not arbitrary-manner. If the government takes a person's property for public use, it must compensate the owner for the value of what is being taken. Generally, in order to ensure fairness, the person being affected must at least be notified of the proposed action and have a hearing.

This requirement covers the manner in which trials are handled when someone is being sued or prosecuted, but should a complete trial be held every time a government acts to take away a person's liberty or property? Should a trial be required no matter how great or how little the "taking" is? Many government agencies (including schools) may act on rules that limit a person's liberty or property rights.

The courts have determined that it is not reasonable to hold court for each incident. To decide when a full trial is necessary, they have developed a series of questions. The answers to these questions serve as guidelines for making this decision.

The next two situations illustrate the use of these guidelines.

SITUATION 8 Wyatt is notified that he has to pay $24 to the public library in fines on eight overdue books. He says the fine should be $18. He claims he returned two of the books on time. No hearing is required by Georgia law.

SITUATION 9 Because of Karen's severe and continuing mental problems, her husband asks the court to commit her to an institution. Although a full-blown trial would not be required, there must be a thorough investigative hearing before action can be taken.

Due process must therefore be provided even when a trial is not held. Usually, due process means that the affected party must receive adequate notice. Some type of hearing may also be involved.

Here are the questions that the court would ask when considering whether a full-blown trial or a less formal hearing is necessary-or whether neither is required.

1. What is being lost by the individual? Is the loss irreplaceable?

The greater the loss, the more protection the procedures should provide. Wyatt's loss (situation 8) is quite small. Further, if a mistake is made in Wyatt's fine, the library can refund his money. On the other hand, a life or period of deprived liberty can never be replaced. If Karen (situation 9) is committed to the mental institution, she can never regain that time.

2. What chance is there that the liberty or property interest will be wrongly taken away?

Karen's situation involves a difficult factual question: is Karen mentally incompetent or dangerous? The answer is not always easy to determine. There could be conflicting testimony from experts. On the other hand, it should be easy to determine how many books Wyatt checked out and if any were returned on time.

3. Would other elements of procedure reduce the risk of error? For example, would representation by a lawyer make a difference?

It might for Karen, and she is entitled to an attorney.

4. Are there other factors that might affect the procedures?

A concern here might be cost. Would additional procedures be too costly? For example, could a library afford to have hearings regarding every fine for overdue books? Such a costly requirement might prevent the library from providing any services at all. The cost of an attorney for Wyatt would certainly be higher than his fine.

What about Karen's situation? The costs must be weighed in both time and money. How much would any added procedures cost? Would the cost be worth it, considering the possible loss of her liberty?


One basic element of due process is notice. Notice requires that a person who may be affected by a government's action be informed of it. He or she must know that the government may act (or, in some cases, may have acted) to take away life, liberty, or property.

Several factors determine whether the notice complies with the due process clause. Is it timely? Is it sufficient? Can the notice ever be given after the action has been taken?

Consider whether fair notice has been given in the fictional case that follows.


Ed, Ernie, and Sharon believe it is unlawful and immoral to require registration with the selective service (for compulsory military service). They decide to protest by sitting in the school principal's office at lunchtime. On the second day of their sit-in, the assistant principal tells them to leave. They refuse. He calls the police. The police pick them up.

A crowd gathers as the police carry the protesters out. Sid, who is in the crowd, heckles the police. Sid pushes Laurie, who is standing near him. Laurie falls in front of a police officer, tripping him. Ed and Ernie then break free. It is not clear if they hit any police officers as they do so. A small riot follows.

All the students involved are sent home immediately. They are told that school officials will meet to decide their punishments. They are not told where or when. Then about 2:30 p.m., the principal calls each of them at their homes. He says, "We school of-ficials will meet at 4:00 p.m. to decide what to do." He does not say what the charges are against the students. He does not say what action the officials might take. He says he will call later that evening to tell them what their punishments will be.

Have the students-Ed, Ernie, Sharon, Sid, and Laurie-been given proper notice?

In considering whether proper notice has been given, the courts will look at what permanent effects the punishments will have. In the Case of the Student Sit-in, Ed and Ernie were expelled. Sharon and Sid were suspended for eight days. A letter of reprimand was put in Laurie's record.

Now let's look at the elements of adequate notice.

Timeliness. For Laurie, the notice could be considered timely enough. Even if it were later determined that the reprimand was improper, the letter could be removed from her file without undue harm. For the other students, however, the notice would not have been adequate. They would not have had time to prepare a defense, and they would suffer harm that could not be reversed.
Sufficiency. The laws of Georgia and the decisions of the U.S. Supreme Court provide students with certain rights.

For a short-term suspension (less than 10 days), school officials must tell students why they are being suspended. In other words, students must be told what the charges are. If the students say they are not guilty, the officials also must tell them what the evidence is against them.

For expulsion or a long-term suspension, officials must notify students and their parents of the charges and possible punishments in writing. The officials must also provide a list of the people who say the students should be suspended. Students must also be given a report, either in writing or in person, of what these witnesses say.

After the action is taken. Notice after an action is taken is adequate only if the government is able to correct any errors. In Laurie's case, the letter of reprimand could be removed. It would be too late to give notice after Ed and Ernie had lost their term of school or after Sid and Sharon's suspensions were over.

Can individuals give up their right to notice? If the students had accepted the notice they received by phone from the principal, they could have waived their right to proper notice. Would such a waiver be fair? The students may not have known their rights. It would be fair only if rules on disciplinary procedures had previously been provided to each student's family-a requirement of Georgia law.

The Hearing

The other basic element of due process is a hearing. A hearing gives an individual an opportunity to tell his or her side of the story. The courts have required that several important issues be considered. These issues concern whether a hearing is necessary and how it should be conducted.

Necessity for a hearing. There are two reasons why an individual should have a hearing. The first is to determine the facts that form the basis for the government's action. In the Case of the Student Sit-In, one question would be, What did Laurie do to cause the disturbance? A second reason is to determine the extent to which the government will act on the basis of the facts. What will be the punishments? What will be the deprivation of life, liberty, or property?

Impartiality. The question of impartiality is critical. Is there any reason why the hearing body cannot act impartially? This question is frequently asked about hear-ings conducted by members of a government agency. For example, can an agency that has fired someone be impartial in reviewing complaints about the firing?
Conduct of the hearing. Should those affected by the government action be able to present their side of the story? Should they be able to call wit-nesses or to cross-examine the govern-ment's witnesses?

Evidence. How much evidence should be necessary to prove guilt? Enough to ensure that there is no reasonable doubt? Or should a lesser standard be sufficient? In weighing these questions, a judge will keep in mind how much deprivation could be imposed. The greater the deprivation, the greater the need for tight rules of evidence.

Legal representation. Having a lawyer is a fundamental right in most criminal cases. The question here is, should the hiring of a lawyer be necessary in noncriminal cases in which substantial liberty or property interests can be taken away by the government?

Presentation of findings. Should the body that holds the hearing record the evidence presented? Should it be required to write an opinion with explanations for the action taken?

Appeal. What if the person is dissatisfied with the hearing's outcome? Should he or she have a right to appeal? If so, should the appeal go to another hearing body or to a court?

The Table below shows some of the laws applying to school expulsions and suspensions in Georgia. It is clear that the principal and assistant principal in the case of the student sit in were remarkably uninformed about the laws involved.

Fortunately, that is not usually true in real-life situations. Read the chart and the discussions on the hearings. Do you think the due process rights of the students involved in the sit-in were violated?

Defendant Rights in School Disciplinary Actions

Possible Action

Letter of complaint in file

Short term suspension

Long term suspension / expulsion

Hearing Body

School officials

School officials

School officials or school board

Testify on own behalf




Call and cross-examine witnesses




Representation by counsel




Record of Hearing Findings



Yes. Local board must report to state board and to person affected.


Yes, through administrative levels and the courts

Yes, through administrative levels and the courts

Yes, through administrative levels and the courts

You might consider whether you think the law ensures due process for these students. For example, should a more formal hearing be required for short-term suspensions? Should the hearing in an expulsion be before a court rather than school officials?

Some of the rules regarding short-term suspensions were established by a decision of the U.S. Supreme Court. Goss v. Lopez, 419 U.S. 565 (1975).

The court felt that the damage to educational opportunity and reputation justified the requirements for notice and an informal hearing. The requirement for a hearing, the court believed, would help reduce any risk of error. The court also considered the cost to schools. It felt the requirement for informal hearings would be affordable.

There is little question that due process is one of our most important protections. You will be able to look again at how it works in the discussion of the criminal justice process. In criminal proceedings, individuals risk being deprived of large amounts of liberty, property, and even life.

* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase at or by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.

Last Review and Update: Jul 30, 2004