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Due process is a difficult thing to define,and the Supreme Court has not been much help over the years. Due Process is mentioned in two places in the Constitution:in the 5th Amendment and in the 14th Amendment. The reference in the 5th Amendment applies only to the federal government and its courts and agencies. The reference in the 14th Amendment extends protection of due process to all state governments,agencies,and courts.
Due process,in the context of the United States,refers to how and why laws are enforced. It applies to all persons,citizen or alien,as well as to corporations.
The Due Process Clause of the Fifth Amendment（applicable to the federal government）and the Fourteenth Amendment（applicable to the states）provide that the government shall not take a person's life,liberty,or property without due process of law. Due process
contemplates
fair process/procedure,which requires at least an opportunity to present objections to the proposed action to a fair,neutral decision‐maker（not necessarily a judge）.
There is a right to procedural due process only when the government acts to deprive an individual of life,liberty,or property（see below）. There is no right to individualized adjudication when the government acts generally,even if the action will result in burdening individuals'life,or property interests.
Fair process is required for intentional acts of the government or its employees. If an injury is caused to a person through the mere negligence of a government employee,there is no violation of the Due Process Clause.
Older Supreme Court cases indicated that due process protects“right,”but not“privileges. ”This approach is no longer followed；rather the Court will determine whether a legitimate liberty or property interest is being taken.
The term“liberty”is not specifically defined. It includes more than just freedom from bodily restraints（for example,it includes the right to contract and to engage in gainful employment）. A deprivation of liberty occurs if a person:
（1）Loses significant freedom of action；or
（2）Is denied a freedom provided by the Constitution or a statute.
“Property”includes more than personal belongings and realty,chattels,or money,but an abstract need or desire for（or a unilateral expectation of）the benefit is not enough. There must be a legitimate claim or“entitlement”to the benefit under state or federal law.
Generally where a law limits the liberty of all persons to engage in some activity,it is a due process question.
The Due Process Clause and the Equal Protection Clause guarantee the fairness of laws—substantive due process guarantees that laws will be reasonable and not arbitrary,and equal protection guarantees that similarly situated person will be treated alike. Both guarantees require the Court to review the substance of the law rather than the procedures employed.
The Court employs one ofthree tests in reviewing laws under these clauses,depending on the circumstances.
The Court uses the strict scrutiny standard when a suspect classification or fundamental right（these terms will be discussed infra）is involved. Under the strict scrutiny standard,a law will be upheld only if it is necessary to achieve a compelling or overriding government purpose. The Court will always consider whether less burdensome means for accomplishing the legislative goal are available. Most government action examined under this test fails.
The Court uses intermediate scrutiny when a classification based on gender or legitimacy is involved. Under the intermediate scrutiny standard,a law will be upheld if it is substantially related to an important government purpose.
The rational basis standard is used whenever the other two standards are not applicable（i. e. ,most legislation）. Under the rational basis standard,a law will be upheld if it is rationally related to a legitimate interest. It is difficult to fail this test；so most governmental action examined under this standard is upheld unless it is arbitrary or irrational.