Eleanor Finch
The Due Process Clause, which appears in the Fifth and Fourteenth Amendments to the US Constitution, states that no person shall be deprived of life, liberty, or property without due process of law. The Supreme Court has interpreted the Due Process Clause as protecting certain substantive rights that are not specifically mentioned in the Constitution, such as privacy. The Due Process Clause has also been used to strike down economic regulations that sought to improve working conditions on the grounds that they violated workers' freedom of contract. The Due Process Clause is a significant aspect of US constitutional law, ensuring that all levels of government operate within the law and provide fair procedures.
| Characteristics | Values |
|---|---|
| Number of Due Process Clauses | 2 (Fifth and Fourteenth Amendments) |
| Purpose | To ensure that no one may be deprived of life, liberty, or property without due process of law |
| Scope | Federal government (Fifth Amendment) and state governments (Fourteenth Amendment) |
| Types of Due Process | Procedural due process and substantive due process |
| Procedural Due Process | Requires notice, opportunity to be heard, and a decision by a neutral decision-maker |
| Substantive Due Process | Protects certain fundamental rights that are deeply rooted in American history and tradition |
| Unenumerated Rights | The Due Process Clause has been used to protect rights not explicitly mentioned in the Constitution, such as privacy and economic regulations |
| Incorporation | The Fourteenth Amendment's Due Process Clause incorporates the Bill of Rights against the states, ensuring federal and state obligations are the same |
| Judicial Recusal | The Due Process Clause of the Fourteenth Amendment requires judges to recuse themselves in certain circumstances due to potential or actual conflicts of interest |
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What You'll Learn
The Due Process Clause in the Fifth Amendment
The Fifth Amendment's Due Process Clause provides a critical safeguard, ensuring that the federal government must operate within the confines of the law and provide fair procedures before depriving an individual of their fundamental rights. This clause reflects the Magna Carta, a thirteenth-century document in which King John pledged to act only according to the law and ensure fair legal processes for his noblemen.
The Supreme Court has interpreted the Due Process Clause in the Fifth Amendment to include both procedural and substantive due process protections. Procedural due process refers to the fair legal procedures that must be followed, while substantive due process guarantees certain fundamental rights that cannot be infringed upon, even if procedural protections are provided.
Additionally, the Supreme Court has interpreted the term "liberty" in the Fifth Amendment's Due Process Clause broadly. This interpretation extends beyond mere freedom from physical restraint, encompassing the full spectrum of individual conduct that is free from improper governmental interference.
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The Due Process Clause in the Fourteenth Amendment
The Due Process Clause of the Fourteenth Amendment prohibits states from depriving any person of "life, liberty, or property, without due process of law". The Fourteenth Amendment was passed by Congress on June 13, 1866, and ratified on July 9, 1868, extending the liberties and rights granted by the Bill of Rights to formerly enslaved people.
The Fourteenth Amendment's Due Process Clause has been interpreted by the Supreme Court to provide protections similar to those of the Fifth Amendment's Due Process Clause. However, while the Fifth Amendment applies to federal government actions, the Fourteenth Amendment applies to the states. The Fourteenth Amendment's Due Process Clause guarantees procedural due process, meaning that government actors must follow certain procedures before depriving an individual of life, liberty, or property.
The Fourteenth Amendment has been used to provide federal protection of individual rights against the states. The Due Process Clause has been interpreted to incorporate many of the individual protections of the Bill of Rights against the states. This means that state governments, along with the federal government, are required to abide by these protections.
The Due Process Clause has also been construed to protect substantive due process, which holds that there are certain fundamental rights that the government may not infringe upon, even if procedural protections are provided. This includes unenumerated rights, which are not explicitly listed in the Constitution but are nevertheless protected. For example, in Griswold v. Connecticut (1965), the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights, despite privacy not being explicitly mentioned in the Constitution.
The Due Process Clause of the Fourteenth Amendment has formed the basis for many high-profile Supreme Court cases, including W. Va. State Bd. of Educ. v. Barnette (1943), Gideon v. Wainwright (1963), and McDonald v. Chicago (2010).
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Procedural due process
The Due Process Clause of the Fourteenth Amendment of the US Constitution provides that no state shall deprive any person of life, liberty, or property without due process of law. This is also known as procedural due process, which is concerned with the procedures the government must follow in criminal and civil matters.
The specific procedures guaranteed by the US Constitution may depend on the nature of the subject matter of the interest in question and each individual's circumstances. For example, in civil contexts, the courts balance private interests, the government's public interest, and the possibility of the government procedure's erroneous deprivation of private interest. On the other hand, in criminal procedures, the court looks at whether the procedure the government has adopted is offensive to the notion of fundamental fairness.
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Substantive due process
The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution 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 Fourteenth Amendment binds the states, while the Fifth Amendment applies to federal government actions.
In successful cases, the Supreme Court recognizes a constitutionally based liberty and considers laws that seek to limit that liberty to be unenforceable or limited in scope. Critics of substantive due process decisions usually assert that such decisions should be left to the purview of more politically accountable branches of government. 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.
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Unenumerated rights
The Due Process Clause of the Fourteenth Amendment has been interpreted by the Supreme Court to protect certain substantive rights that are not specifically listed or "enumerated" in the Constitution. These unenumerated rights are inferred from other rights that are implied by existing laws, such as written constitutions. The idea that the Constitution only protects rights that are explicitly mentioned is problematic, as it must also account for the Ninth Amendment, which acknowledges that the enumeration of certain rights in the Constitution does not deny or disparage other rights retained by the people.
The Due Process Clause has been used as a basis for various unenumerated privacy rights. For example, in Griswold v. Connecticut (1965), the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to privacy was inferred from the "penumbras", or shadowy edges, of certain amendments that refer to privacy rights.
The Due Process Clause has also been used to protect other unenumerated rights, such as the right to direct the education and upbringing of one's children, the right to procreate, the right to bodily integrity, the right to marry, the right to abortion, and the right to sexual intimacy. These rights are considered so important that they cannot be infringed upon without a compelling reason, regardless of the amount of process given.
The Supreme Court's authority to enforce such unenumerated rights is not always clear, and the use of substantive due process to protect these rights has been controversial. The concern is that the Supreme Court, composed of unelected Justices, can impose their policy preferences on the nation, as unenumerated rights do not directly flow from the text of the Constitution. This was particularly evident in the early decades of the twentieth century, when the Court used the Due Process Clause to strike down economic regulations that sought to improve workers' conditions, arguing that they violated workers' "freedom of contract", a right not specifically guaranteed in the Constitution.
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Frequently asked questions
The Due Process Clause refers to the concept that no person shall be "deprived of life, liberty or property without due process of law". It can be found in both the Fifth Amendment and the Fourteenth Amendment to the U.S. Constitution.
The Fifth Amendment applies to federal government actions, whereas the Fourteenth Amendment binds the states.
There are two types of due process: procedural due process and substantive due process. Procedural due process involves the steps that must be taken before someone is deprived of an interest involving life, liberty, or property. Substantive due process involves certain fundamental rights that are deeply rooted in American history and tradition.
