Due Process Clauses: How Many Does The Constitution Protect?

The Due Process Clause, which prohibits the government from depriving individuals of life, liberty, or property without due process of law, appears twice in the United States Constitution: in the Fifth Amendment and the Fourteenth Amendment. The Supreme Court interprets these clauses to guarantee a variety of protections, including procedural due process, substantive due process, and equal protection under the law. The Due Process Clause has been the subject of numerous Supreme Court cases, including Bucklew v. Precythe, which upheld the death penalty in the United States, and Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade and returned the authority to regulate abortion to the states.

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The Fifth Amendment Due Process Clause

The US Constitution contains two Due Process Clauses, one in the Fifth Amendment and one in the Fourteenth Amendment. The Fifth Amendment states that no person shall be "deprived of life, liberty or property without due process of law" by the federal government. The Fourteenth Amendment, ratified in 1868, contains the same wording, but applies this rule to the states.

The Fifth Amendment's Due Process Clause has been applied to corporations, as well as to citizens and non-citizens within the United States. It also applies to US territories. The Supreme Court has interpreted the Due Process Clause in the Fifth Amendment to allow the death penalty, as long as proper procedures are followed.

Procedural due process protections are essential safeguards against government abuse of power and tyranny. They ensure that individuals are treated justly under the law. The specific process required can differ and has been a significant matter for interpretation by the US Supreme Court.

The Fourteenth Amendment Due Process Clause

The Due Process Clause of the Fourteenth Amendment prohibits states from depriving "any person of life, liberty, or property, without due process of law." It was ratified in 1868, following the Civil War, to protect individual rights from interference by the states.

The Fourteenth Amendment's Due Process Clause is the source of an array of constitutional rights, including some of the most cherished and controversial. The Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment identically to that of the Fifth Amendment. However, the Fifth Amendment applies only against the federal government, whereas the Fourteenth Amendment applies to the states.

The Due Process Clause of the Fourteenth Amendment has been used to protect certain substantive rights not listed in the Constitution. These unenumerated rights are considered so important that they cannot be infringed upon without a compelling reason, regardless of the amount of process given. This interpretation has been controversial, as it allows the Supreme Court to impose its policy preferences on the nation.

The Fourteenth Amendment's Due Process Clause has also been used to "incorporate" the Bill of Rights against the states, requiring state governments to abide by the same protections as the federal government. This includes procedural due process in civil and criminal proceedings, substantive due process, a prohibition against vague laws, and equal protection under the law.

Procedural due process

The Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution. The Fifth Amendment, added to the Constitution at the same time as the Eighth, states that no person 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, and applies this legal obligation to all states.

The specific procedures guaranteed by the U.S. Constitution may depend on the nature of the subject matter of the interest in question as well as each individual's circumstances. For example, in civil contexts, the courts utilize a balancing test between private interests, the government's public interest, and the possibility of the government procedure's erroneous deprivation of private interest in evaluating government conduct. On the other hand, in criminal procedures, the court looks to whether the procedure the government has adopted is offensive to the notion of fundamental fairness for the due process analysis.

The Supreme Court has interpreted the Due Process Clauses in the Fifth and Fourteenth Amendments identically. The Due Process Clause of the Fourteenth Amendment is the source of an array of constitutional rights, including many of the most cherished and most controversial. The Court has also deemed the due process guarantees of the Fifth and Fourteenth Amendments to protect certain substantive rights that are not listed in the Constitution.

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Substantive due process

The Due Process Clause can be found in the Fifth and Fourteenth Amendments to the United States Constitution. The Fifth Amendment applies to the federal government, while the Fourteenth Amendment applies to state governments. The Due Process Clause prohibits the deprivation of "life, liberty, or property" without due process of law.

The term "substantive due process" is commonly used in two ways: to refer to a particular line of case law and to signify a particular political attitude toward judicial review under the two due process clauses. The Supreme Court has used substantive due process to protect unenumerated rights, which are not explicitly listed in the Constitution but are deeply rooted in US history and tradition. These include personal and relational rights, such as the right to privacy, the right to work in an ordinary job, the right to marry, and the right to raise one's children.

One of the earliest cases involving substantive due process was Allgeyer v. Louisiana in 1897, which interpreted the word "liberty" in the Due Process Clause to mean economic liberty. During the Lochner Era (c. 1897-1937), the Supreme Court used substantive due process to strike down minimum wage and labour laws that interfered with freedom of contract. However, the Court's interpretation of substantive due process during this period has been widely criticised as an instance of judicial activism. In 1937, the Court rejected the Lochner Era's interpretation in West Coast Hotel v. Parrish, allowing Washington to implement a minimum wage for women and minors.

The Supreme Court's interpretation of the Due Process Clause

The Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution. The Supreme Court has interpreted these clauses identically, guaranteeing a range of protections. These include procedural due process, substantive due process, a prohibition against vague laws, incorporation of the Bill of Rights to state governments, and equal protection under federal law.

Procedural due process refers to the steps that must be taken before depriving an individual of interests involving life, liberty, or property. These typically include notice, an opportunity to be heard, and an unbiased decision-maker. In some cases, it may also entail the right to present evidence, cross-examine witnesses, and legal representation. In the 1970 case of Goldberg v. Kelly, the Court ruled that welfare benefits constitute "property" with due process protections, requiring a full hearing before termination.

Substantive due process involves certain fundamental rights deeply rooted in American history and tradition. The Supreme Court has interpreted the term "liberty" broadly, extending beyond freedom from bodily restraint to the full range of conduct an individual is free to pursue. The Court has also used the Due Process Clause to protect certain substantive rights not explicitly listed in the Constitution, such as economic regulations to better workers' conditions. However, this expansion of substantive due process has been controversial, with critics arguing that it allows unelected justices to impose their policy preferences.

The incorporation of the Bill of Rights into the Due Process Clause has been a significant aspect of the Supreme Court's interpretation. While the Bill of Rights initially applied only to the federal government, the Fourteenth Amendment extended these protections to the states. The Supreme Court has held that the Due Process Clause "incorporates" many, but not all, of the individual protections of the Bill of Rights against the states, requiring both state and federal governments to abide by them.

The Due Process Clause has also been invoked in criminal cases. For instance, in Glossip v. Oklahoma (2025), the Court ruled that a criminal defendant is entitled to a new trial if the prosecution fails to correct false testimony contributing to the verdict. Additionally, the Due Process Clause has been interpreted to forbid the introduction of highly prejudicial evidence that renders a criminal trial fundamentally unfair. In the context of coercive police activity, the Clause has been associated with Miranda rights, focusing on governmental coercion.

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