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CHAPTER 5

Procedural Due Process and Irrebuttable Presumptions

§5.1 INTRODUCTION AND OVERVIEW

The Due Process Clauses of the Fifth and the Fourteenth Amendments prohibit the federal government and the states from depriving a person of “life, liberty, or property, without due process of law.” A law that impairs a liberty or property interest may be struck down under the Due Process Clause either because of the law's substantive content or because of the process by which it is enforced. The first of these bases for invalidation involves substantive due process, while the second involves procedural due process. As we saw in Chapter 2, a substantive due process claim asserts that a law is invalid because the government lacks a sufficient reason or justification to warrant interfering with liberty or property. A procedural due process argument, on the other hand, assumes that a law is otherwise valid, but asserts that the manner employed in enforcing or applying it is unfair.

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