Due Process

PLA 2880Activity 9·9 min read

Why it Matters

The Constitution says government can’t take your life, liberty, or property without “due process of law,” but what that means depends on which kind of due process is in play. Sometimes it means you’re entitled to a fair process, like a hearing before your benefits are cut off; other times it means the government can’t touch certain rights at all, even with a perfect process. In this module you’ll learn how courts have interpreted the Due Process Clauses of the Fifth and Fourteenth Amendments to protect both procedural fairness and substantive rights. You’ll also see how judges decide whether a liberty is “fundamental,” a question that drives the debates over abortion, marriage, parenting, and more.

Current Context

On June 15, 2026, the Court granted certiorari in Genalo v. Black to decide whether immigration detention under 8 U.S.C. § 1226(c) can become so prolonged that due process requires a bond hearing, and whether the government must then justify continued detention by clear and convincing evidence. The circuits split first: a Fifth Circuit panel held on July 2, 2026 that detainees are entitled to a hearing within 90 days, and the full court vacated that decision on July 10 by granting rehearing en banc, with argument set for September. Every layer of the dispute is the Mathews v. Eldridge balance this activity teaches, run at the highest stakes: the private interest in liberty, the risk of erroneous deprivation, and the government’s interest in enforcement. Argument in Genalo is expected in the October 2026 term, so the question stays open all semester.

Key Concepts

Procedural Due Process

The requirement that government follow fair procedures before depriving someone of life, liberty, or property. The classic questions are what counts as a protected interest and how much process is due.

Substantive Due Process

The doctrine that the Due Process Clause protects certain fundamental rights from government interference regardless of the procedure used. It is the most contested doctrine in constitutional law, from the Lochner era through Dobbs.

Mathews v. Eldridge Test

The balancing test courts use to determine what procedures are required before a specific government deprivation. It weighs the private interest, the risk of erroneous deprivation, and the government’s interest.

Fundamental Rights

Rights regarded as fundamental to liberty and justice, whether enumerated (like free speech) or unenumerated (like marriage or parenting). Laws burdening fundamental rights are reviewed under heightened scrutiny.

Levels of Scrutiny

The tier framework introduced in Activity 8 does the sorting here: laws burdening fundamental rights face strict scrutiny and usually fall, while everything else gets rational basis review and almost always survives. The choice of standard often decides the case before the arguments begin.

Evolving Doctrine

The meaning and scope of liberty under the Due Process Clause has changed over time, especially in areas like privacy, family, and medical decision-making. Which rights count as “fundamental,” and what method identifies them, remains the live fight, as Glucksberg, Obergefell, and Dobbs show.

Resources

US Constitution (Constitution Annotated) (Locate the Due Process Clauses of the Fifth and Fourteenth Amendments; note that the same eleven words appear in both.)
Fourteenth Amendment essays, Constitution Annotated (Library of Congress essays on procedural and substantive due process; a primary verification source for this activity.)
Due Process (Cornell Wex) (A clear reference distinguishing the procedural and substantive strands; useful for fact-checking the speech and the article the AI generates.)
Oyez (Plain-language summaries and argument audio for the cases below; the fastest way to confirm a holding before you rely on the AI’s account of it.)
Google Scholar (Full opinions for the cases below; Westlaw via the Daytona State library also works.)

The cases below are the doctrinal spine. Look up any you need on Oyez, Google Scholar, or Westlaw:

Lochner v. New York (1905): the key case of the “Lochner era,” using substantive due process to protect “liberty of contract” and strike down economic regulations; its repudiation left deep judicial skepticism of the doctrine.
Meyer v. Nebraska (1923): early recognition of family and education as protected liberty interests.
Pierce v. Society of Sisters (1925): parents have a fundamental right to direct the upbringing and education of their children.
Griswold v. Connecticut (1965): recognizes a right to privacy in marriage, launching modern substantive due process.
Goldberg v. Kelly (1970): a hearing is required before terminating welfare benefits; the foundational procedural due process case.
Morrissey v. Brewer (1972): parole revocation deprives a person of liberty, so due process requires an informal hearing before parole is revoked.
Wolff v. McDonnell (1974): prisoners retain due process protections in disciplinary proceedings that take good-time credits, though fewer than at trial.
Roe v. Wade (1973) and Planned Parenthood v. Casey (1992): Roe established a fundamental right to abortion; Casey reaffirmed it while replacing the trimester framework with the “undue burden” standard, controlling until Dobbs.
Mathews v. Eldridge (1976): the balancing test for what procedures are due in administrative settings.
Washington v. Glucksberg (1997): the history-and-tradition test for recognizing new fundamental rights.
Lawrence v. Texas (2003): strikes down sodomy laws, expanding substantive protection for personal relationships.
Obergefell v. Hodges (2015): the Due Process Clause guarantees the fundamental right to marry to same-sex couples.
Dobbs v. Jackson Women’s Health Organization (2022): overrules Roe and Casey, redefining the scope of substantive due process and the judicial role in defining liberty.

What to Do

In this activity you’ll use AI to explore the two sides of due process, procedural and substantive, and then verify what you learn using reliable legal sources. You’ll complete two generation-and-verification tasks and write a short reflection on what you discovered and corrected.

Part 1: The Speech (200–300 words)

Use the Lecture Hall Speech prompt to generate a mock speech on due process. Read the AI’s response closely, noting how it explains procedural versus substantive due process, where due process appears in the Constitution, and what cases or examples it uses. Then fact-check the key points against the Wex article, the Constitution Annotated essays, or the opinions themselves; the Doctrine Fact-Checker can help you decide which claims to verify first. Write 200–300 words summarizing what the AI got right, what needed correction, and what you learned.

Part 2: The Article (200–300 words)

Use the Narrative Historian prompt to generate a magazine-style article on the history of substantive due process. Review it for accuracy: identify the key cases and turning points, and check how the levels of scrutiny are explained. Note any errors or gaps, then write 200–300 words summarizing your corrections and reflecting on what you learned about substantive due process, including which protected rights you knew about and which surprised you.

Include one AI chat link with a 1–2 sentence explanation of what the conversation shows and why you chose to share it.

Suggested AI Prompts

Use these prompts as a starting point, then adjust them to fit your goal. Strong prompting develops through trial, revision, and testing. It’s a foundational skill that grows into more advanced AI work such as context engineering and agent-based workflows.

The Lecture Hall Speech

You are a constitutional law scholar delivering a prepared speech to college students on the topic of due process. Write the full transcript of your speech. Your tone should be erudite, witty, and professional. Emphasize the big picture: due process is not solely about procedure, it also encompasses fundamental rights, which contributes to its complexity even among legal scholars. Clearly explain the two components of due process, procedural and substantive. Identify where due process is found in the U.S. Constitution and discuss how courts have interpreted it over time, referencing major landmark cases. Use examples that are especially relevant to college students, including those who are working, raising children, or preparing for careers in criminal justice, to keep their attention and make the content memorable. Explain how procedural due process applies broadly to all government actions, including civil litigation, where a process must exist before depriving someone of life, liberty, or property. Then do the same for substantive due process. Conclude your speech by letting the students know you will take questions. Output only the transcript of the speech.

Audience specification is the technique here: telling the model who is listening (working college students, some raising children) reshapes the examples and register far more than a generic “explain due process” would. The transcript-only output constraint prevents the model from padding the response with meta-commentary.

The Narrative Historian

Write an engaging, narrative-style magazine article for a college-level audience that traces the history of substantive due process in U.S. constitutional law. The article should be approximately 1,200 to 1,800 words and written in an accessible tone, think The Atlantic or The New Yorker rather than a law review. Begin by introducing the concept of substantive due process in plain language, explaining why it has been one of the most debated doctrines in constitutional law. Then trace its origins, connecting it to early constitutional debates. From there, guide the reader through the era when the Supreme Court used substantive due process to protect economic liberties like freedom of contract. Explain how that era gave way to a new focus on personal liberties, as courts began recognizing rights related to family, privacy, and bodily autonomy. Highlight key shifts through landmark cases. Use vivid examples and legal storytelling to explore how courts have determined which rights count as “fundamental” even when they are not explicitly listed in the Constitution. Include a clear explanation of legal concepts like levels of scrutiny and how those standards have been applied to expand or contract recognition of rights over time. Conclude by examining the current state of the doctrine, the legal and political tensions it continues to generate, and how its future may shape constitutional law for the next generation. Avoid legalese, use creative section titles, and make the narrative feel alive, engaging readers with the people, politics, and principles that shaped the story.

This prompt uses style transfer with guardrails: the magazine voice makes doctrine memorable, while the required doctrinal checkpoints (economic-liberty era, the shift to personal liberty, levels of scrutiny) keep the storytelling from drifting away from the law. Narrative outputs are the easiest place for models to smuggle in errors, which is why Part 2 pairs this prompt with verification.

The Doctrine Fact-Checker

You are a legal fact-checking assistant. I will paste an AI-generated speech or article about due process. Extract every checkable claim it makes: each case name with its attributed holding, each test attributed to a case, each statement about where due process appears in the Constitution, and each claim that a doctrine or case has been overruled. Present them as a numbered list. For each claim, rate your confidence that it is accurate (high, medium, or low), and identify the best free source to verify it: the Constitution Annotated, Cornell’s Wex, or the opinion itself. Do not correct the claims; produce only the extraction and the verification map.

Claim extraction converts a persuasive wall of prose into a discrete, checkable list, which is the first step of any serious verification workflow. Keeping extraction separate from correction matters: a model asked to fix its own errors will often replace them with new ones, while you checking primary sources will not.