Simone Lawson
Due process is addressed in the US Constitution in the Fifth and Fourteenth Amendments, which prohibit the deprivation of life, liberty, or property by the federal and state governments, respectively, without due process of law. The Due Process Clause in the Fifth Amendment states that no person shall be deprived of life, liberty, or property, without due process of law. The Fourteenth Amendment, ratified in 1868, extended liberties and rights granted by the Bill of Rights to formerly enslaved people and contains a similar Due Process Clause. The Supreme Court interprets these clauses to guarantee protections such as procedural due process, substantive due process, equal protection under the laws, and a prohibition against vague laws.
| Characteristics | Values |
|---|---|
| Due Process Clause | Found in the Fifth and Fourteenth Amendments to the US Constitution |
| Prohibits the deprivation of "life, liberty, or property" without due process of law | |
| Provides federal protection of individual rights against the states | |
| Protects certain substantive rights that are not listed in the Constitution | |
| Provides procedural due process in civil and criminal proceedings | |
| Guarantees fundamental rights | |
| Prohibits vague laws | |
| Incorporates the Bill of Rights to state governments | |
| Provides equal protection under the laws of the federal government | |
| Allows the death penalty if proper procedures are followed | |
| Includes the right to privacy | |
| Includes the right to travel and the right to vote |
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What You'll Learn
The Fifth Amendment
Due process, in the context of the Fifth Amendment, is about procedural fairness and equal protection under the law. It acts as a safeguard against arbitrary or discriminatory actions by the government, requiring that laws be applied equally to all citizens and non-citizens alike. This includes the right to a hearing before an impartial judicial officer, the right to an attorney, the right to present evidence, and the right to confront and cross-examine witnesses.
Additionally, the Fifth Amendment's reference to "due process" is one of many protections offered by the Bill of Rights against the federal government. This amendment ensures that individuals are treated justly under the law and are protected from government abuse of power.
The Due Process Clause of the Fifth Amendment also includes the Takings Clause, which states that private property cannot be taken for public use without just compensation. This clause limits the government's power over private property, ensuring that property owners are fairly compensated if their land is used for public purposes.
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The Fourteenth Amendment
Procedural due process refers to the legal obligation of all states to operate within the law and provide fair procedures. The Supreme Court has interpreted procedural due process to include the right to a hearing before an impartial judicial officer, the right to an attorney, the right to present evidence and argument orally, and the chance to examine all materials and witnesses.
Substantive due process has been interpreted to include the right to work in an ordinary job, marry, and raise children. It also includes economic liberties such as the liberty of contract, which has been used to strike down state and federal labour regulations.
The Due Process Clause of the Fourteenth Amendment has been used to incorporate most of the protections in the Bill of Rights against the states. This means that state governments are required to abide by the same protections as the federal government, such as freedom of speech, freedom of religion, and protection against unreasonable searches and seizures.
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Procedural due process
The Fourteenth Amendment, ratified in 1868, extended the liberties and rights granted by the Bill of Rights to formerly enslaved people, ensuring that these protections applied to all states. Section 1 of the Fourteenth Amendment includes the same eleven words as the Fifth Amendment, known as the Due Process Clause, which applies to the states. The Due Process Clause of the Fourteenth Amendment is the source of a range of constitutional rights, including some of the most cherished and controversial.
The Due Process Clause guarantees procedural due process in civil and criminal proceedings, requiring fair procedures and ensuring that all levels of American government operate within the law (legality). In criminal trials, the Bill of Rights provides explicit answers regarding due process, while in civil trials, the long history of English practice provides some landmarks. The Goldberg Court set out specific procedural rights, including the right to a hearing before an impartial judicial officer, the right to an attorney, and the right to present evidence and confront witnesses.
The Supreme Court has since adopted a more discriminating approach, recognising that what process is "due" depends on the situation and cannot be answered with a single list of procedures. The Court has also interpreted the Due Process Clause to protect certain substantive rights that are not explicitly listed in the Constitution, such as privacy rights. This interpretation is based on the idea that certain liberties are so important that they cannot be infringed without a compelling reason, regardless of the process given.
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Substantive due process
The Due Process Clause, found in the Fifth and Fourteenth Amendments to the United States Constitution, prohibits the deprivation of "life, liberty, or property" without due process of law. While the Fifth Amendment applies to federal action, the Fourteenth Amendment applies to state action.
The concept of substantive due process first appeared in the case of Bloomer v. McQuewan in 1852, and the term was first used explicitly in 1930s legal casebooks. The Supreme Court's first foray into defining which government actions violate substantive due process was during the Lochner Era, which began in 1897. During this time, the Court used substantive due process to strike down minimum wage and labour laws to protect freedom of contract. In Lochner v. New York (1905), the Supreme Court found a New York law regulating the working hours of bakers to be unconstitutional.
In 1937, the Supreme Court rejected the Lochner Era's interpretation of substantive due process in West Coast Hotel v. Parrish, allowing Washington to implement a minimum wage for women and minors. Since then, the Court has decided that the Constitution protects numerous other freedoms, even if they are not explicitly listed in the Bill of Rights. These rights are considered deeply rooted in US history and tradition and viewed in light of evolving social norms.
Critics of substantive due process argue that judges are making determinations of policy and morality that should be left to more politically accountable branches of government. However, substantive due process remains an important safeguard against unwarranted government intrusion, ensuring that essential personal freedoms are protected.
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The Bill of Rights
The US Constitution requires that federal and state governments abide by certain procedures to protect the essential interests of all citizens. The Fifth Amendment, part of the Bill of Rights, states that no one shall be "deprived of life, liberty or property without due process of law". The Fourteenth Amendment, ratified in 1868, contains the same wording, known as the Due Process Clause, which applies to all states.
The Due Process Clause of the Fourteenth Amendment is the source of a range of constitutional rights, including procedural protections, such as notice and a hearing before termination of entitlements, and individual rights listed in the Bill of Rights, including freedom of speech, freedom of religion, and the right to bear arms. The Due Process Clause also guarantees fundamental rights that are not specifically enumerated elsewhere in the Constitution, such as the right to marry, the right to use contraception, and the right to abortion.
Substantive due process involves certain fundamental rights that are deeply rooted in American history and tradition. This includes liberty-based due process challenges that seek certain outcomes instead of merely contesting procedures and their effects. The Supreme Court has decided that numerous freedoms that do not appear in the plain text of the Constitution are nevertheless protected by it. For example, the Court has inferred a "right to privacy" from the "'penumbras' of rights that are enumerated", such as the First Amendment right to assembly.
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Frequently asked questions
Due process is a course of legal proceedings according to rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private rights.
The Fifth Amendment states, "No person shall...be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment, ratified in 1868, uses the same eleven words, known as the Due Process Clause, to describe a legal obligation of all states.
The Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution. It prohibits the deprivation of "life, liberty, or property" by the federal and state governments, respectively, without due process of law.
The U.S. Supreme Court interprets the Due Process Clause to guarantee protections such as procedural due process in civil and criminal proceedings, substantive due process (a guarantee of fundamental rights), a prohibition against vague laws, incorporation of the Bill of Rights to state governments, and equal protection under federal law.
The determination of due process in a legal case can vary depending on the specific circumstances. The Supreme Court has adopted a discriminating approach, considering the seriousness of outcomes, charges, and institutions involved. The Goldberg Court outlined specific procedural protections, including the right to a hearing before an impartial judicial officer, the right to an attorney, and the right to present evidence.
