Due Process Clauses: Two Constitutional Safeguards

The Due Process Clause, which states that no individual shall be deprived of life, liberty or property without the due process of law, appears twice in the United States Constitution: in the Fifth Amendment and the Fourteenth Amendment. The Supreme Court has interpreted the two clauses identically, with the Fourteenth Amendment extending the Fifth Amendment's protections to the states. The Due Process Clause has been interpreted by the Supreme Court to encompass procedural protections, individual rights, and fundamental rights not specifically enumerated elsewhere in the Constitution.

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Procedural due process

The Fourteenth Amendment's Due Process Clause has been interpreted to provide federal protection of individual rights against the states, ensuring that state governments, as well as the federal government, abide by the protections outlined in the Bill of Rights. This includes the right to privacy, as seen in the case of Roe v. Wade, where the Court held that a woman has a qualified right to terminate her pregnancy, and the right to same-sex marriage, as seen in Obergefell v. Hodges.

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. The Fifth Amendment applies to federal action, while the Fourteenth Amendment applies to state action.

The Supreme Court's first attempt to define which government actions violate substantive due process came during the Lochner Era. In Lochner v. New York (1905), the Supreme Court found a New York law regulating the working hours of bakers to be unconstitutional, ruling that the public's "liberty" included the right to freely contract for one's labour. However, in 1937, the Supreme Court rejected this interpretation in West Coast Hotel v. Parrish, allowing Washington to implement a minimum wage for women and minors.

Since then, the Supreme Court has determined that fundamental rights protected by substantive due process are those deeply rooted in US history and tradition, viewed in light of evolving social norms. These rights are not explicitly listed in the Bill of Rights but are assumed to exist based on the penumbra of certain Amendments. This has led the Court to find that personal and relational rights, rather than economic rights, are fundamental and protected.

Critics of substantive due process argue that such decisions should be left to the politically accountable branches of government. The Supreme Court has also been criticised for its vague and elusive interpretation of substantive due process, with the authority to enforce unenumerated rights remaining unclear.

Prohibition against vague laws

The Due Process Clause is found in the Fifth and Fourteenth Amendments to the United States Constitution. The Fifth Amendment applies to federal government actions, while the Fourteenth Amendment binds the states. The clauses prohibit the deprivation of "life, liberty, or property" without due process of law.

The prohibition against vague laws is an important aspect of the Due Process Clause. This prohibition is derived from the concept of unconstitutional vagueness, which is used to strike down laws and judicial actions in federal courts. The void-for-vagueness doctrine requires laws to be written explicitly and definitely, stating what conduct is punishable. This ensures that individuals understand the scope and nature of statutes that may subject them to criminal penalties.

For example, in FCC v. Fox Television Stations, Inc. (2012), the Supreme Court ruled that the words "obscene," "vulgar," "profane," and "indecent" were unconstitutionally vague as they were not accurately defined, and their interpretation could vary among individuals. Similarly, in Franklin v. State (Fla. 1971), the Florida Supreme Court ruled that the state's felony ban on sodomy was unconstitutionally vague, as an "average person of common intelligence" could not reasonably know whether the law applied to oral sex, anal sex, or both.

The void-for-vagueness doctrine serves two main purposes: providing fair notice of punishable conduct and preventing arbitrary enforcement of laws and prosecutions. It helps ensure that individuals can easily understand what acts or duties are required or restricted by the law. This is crucial for safeguarding constitutionally permissible activity, which should not be hindered by vague statutes.

In conclusion, the prohibition against vague laws under the Due Process Clause of the Fifth and Fourteenth Amendments is essential for upholding fairness and justice in the United States legal system. It ensures that laws are clear, understandable, and fairly enforced, protecting individuals from unreasonable restrictions on their rights and freedoms.

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Incorporation of the Bill of Rights

The Due Process Clause is found in the Fifth and Fourteenth Amendments to the United States Constitution. The Fifth Amendment applies to federal government actions, while the Fourteenth Amendment binds the states. The Fourteenth Amendment was ratified in 1868, following the Civil War, and it includes the Due Process Clause and the Privileges or Immunities Clause.

The Due Process Clause of the Fourteenth Amendment has been interpreted by the Supreme Court to "incorporate" many of the protections of the Bill of Rights against the states. This is known as the incorporation doctrine, where parts of the Bill of Rights are made applicable to the states through the Due Process Clause. This doctrine applies both procedurally and substantively. Procedural due process refers to the requirement that government actors follow certain procedures before depriving an individual of their protected life, liberty, or property interests. Substantive due process, on the other hand, guarantees certain fundamental rights that the government may not infringe upon, even with procedural protections in place.

The Bill of Rights, comprising the first ten amendments to the Constitution, initially only restricted the actions of the federal government and did not limit the authority of state and local governments. However, the post-Civil War era, beginning with the Thirteenth Amendment's abolition of slavery, led to the incorporation of other amendments, gradually extending more rights to the states and their citizens.

Through a series of Supreme Court decisions in the 1920s and subsequent years, the Fourteenth Amendment was interpreted to incorporate most portions of the Bill of Rights, making them enforceable against state governments for the first time. This process, known as selective incorporation, involved the Supreme Court selectively incorporating rights deemed essential to due process rather than incorporating the entire Bill of Rights at once. While there is still contention surrounding the incorporation of substantive rights, the Supreme Court has successfully extended almost all protections in the Bill of Rights to the states.

Equal protection under the law

The Equal Protection Clause, located at the end of Section 1 of the Fourteenth Amendment, states that:

> No state shall [...] deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment, ratified in 1868 after the Civil War, was intended to stop states from discriminating against black people. The Amendment marked a significant shift in American constitutionalism, imposing far more constitutional restrictions on the states than had been in place before the Civil War. The Equal Protection Clause was also motivated by the equality provisions of the Civil Rights Act of 1866, which guaranteed that all citizens would have the right to equal protection by law.

Despite its reference to "state[s]", the Equal Protection Clause has been interpreted to apply to the federal government as well. In Bolling v. Sharpe (1954), the Supreme Court held that the Due Process Clause of the Fifth Amendment requires equal protection under the laws of the federal government.

The Equal Protection Clause has been central to many Supreme Court decisions, including Brown v. Board of Education (1954), which helped to dismantle racial segregation, and Obergefell v. Hodges, which legalised same-sex marriage.

The Fourteenth Amendment's Due Process Clause guarantees procedural due process, meaning that government actors must follow certain procedures before depriving a person of a protected life, liberty, or property interest. The Clause has also been interpreted to protect substantive due process, guaranteeing certain fundamental rights that the government may not infringe upon even with procedural protections.

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