What Is Due Process?

Due process is a foundational principle in the United States Constitution. It is embedded in two key places:

Fifth Amendment: “No person shall be… deprived of life, liberty, or property, without due process of law.”

Fourteenth Amendment: “Nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Due process protects people from government overreach. It ensures that before a person’s rights are taken away, such as their freedom, property, or custody of a child, they are given notice and a fair chance to defend themselves.

Procedural vs. Substantive Due Process

Procedural Due Process refers to how the government acts. It guarantees fair procedures, such as notice, the right to a hearing, a chance to present evidence, and an impartial decision-maker. If CPS removes your child without letting you speak in court first, that is a violation of procedural due process.

Substantive Due Process concerns what the government is trying to do. It protects fundamental rights, like parenting. The U.S. Supreme Court has recognized that parents have a fundamental liberty interest in the care, custody, and control of their children, as seen in Troxel v. Granville, 530 U.S. 57 (2000). The government cannot interfere with that right without a compelling reason.

What Due Process Is Not: Samantha’s Story

Samantha is a real mother with a story that reflects what happens when due process is denied.

She worked long shifts as a night nurse, while her children were cared for by their grandmother. One day, Child Protective Services received an anonymous call claiming the children were “often alone.” Without visiting the home or interviewing Samantha, CPS went to the children’s school and removed them.

No court hearing. No emergency petition. No opportunity for Samantha to present facts or defend herself.

Instead, she was handed a case plan with parenting classes, drug tests, and a psychological evaluation. No charges were filed. No abuse was found. But her daughters were gone, and she was forced to prove her innocence.

This is not just unfair. It is unconstitutional.

When Due Process Breaks, Families Break

Due process is not just legal jargon. It is the barrier between families and the unchecked power of government agencies. When that barrier is ignored, what remains is trauma, injustice, and children separated from safe, loving homes.

The Law

U.S. Constitution – Fourteenth Amendment
“Nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Troxel v. Granville, 530 U.S. 57 (2000)
“The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.”