Gavin Howe
Due process of law is a concept found in the Fifth Amendment to the US Constitution, which states that no one shall be deprived of life, liberty or property without due process of law by the federal government. The Fourteenth Amendment, ratified in 1868, extends this obligation to the states, prohibiting them from depriving any person of life, liberty, or property without due process of law. The Due Process Clause of the Fourteenth Amendment has been interpreted to include procedural due process, substantive due process, and equal protection under the laws of the federal government. Procedural due process refers to the legal procedures that must be followed, while substantive due process deals with specific subject areas such as liberty of contract or privacy. The interpretation of what constitutes a fundamental right protected by substantive due process has been a subject of political controversy and legal debate.
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What You'll Learn
The Fifth Amendment
The Supreme Court has interpreted the Fifth Amendment's Due Process Clause to provide two main protections: procedural due process and substantive due process. Procedural due process requires government officials to follow fair procedures before depriving a person of life, liberty, or property. This often requires the government to provide a person with notice and an opportunity for a hearing before such deprivation. Procedural due process also requires a fair and impartial hearing, where individuals can present their case, evidence, and arguments.
Substantive due process protects certain fundamental rights from government interference. It ensures that the laws and actions of the government do not violate fundamental rights such as the right to privacy, the right to marry, and other basic liberties. Substantive due process has generally dealt with specific subject areas, such as liberty of contract, marriage, or privacy.
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The Fourteenth Amendment
> No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This clause has been interpreted to mean that all levels of the American government must operate within the law and provide fair procedures. The Fourteenth Amendment extends the obligation to respect due process from the federal government (as outlined in the Fifth Amendment) to the individual states.
The Due Process Clause of the Fourteenth Amendment has been used in numerous high-profile Supreme Court cases, including:
- W. Va. State Bd. of Educ. v. Barnette (1943)
- Gideon v. Wainwright (1963)
- Griswold v. Connecticut (1965)
- McDonald v. Chicago (2010)
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Procedural due process
The US Constitution requires federal and state governments to follow certain procedures to protect the essential interests of all people within the United States. The Fifth and Fourteenth Amendments, also known as the Due Process Clauses, guarantee due process to all persons located within the country.
The specific procedures guaranteed by the US 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 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, Gideon v. Wainwright, Griswold v. Connecticut, and McDonald v. Chicago.
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Substantive due process
The term "substantive due process" is used in two ways: to identify a particular line of case law and to signify a particular political attitude toward judicial review under the two due process clauses. Much of the litigation involves legal challenges to the validity of unenumerated rights and seeks particular outcomes instead of merely contesting procedures and their effects.
The Supreme Court's first attempt to define which government actions violate substantive due process was 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 benefit did not justify the infringement on an individual's freedom to make contracts. 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.
Critics of substantive due process argue that such decisions should be left to the more politically accountable branches of government.
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Fundamental rights
The Due Process Clause, found in the Fifth and Fourteenth Amendments to the United States Constitution, is a fundamental right that prohibits the federal and state governments from depriving citizens of their "life, liberty, or property" without due process of law. This clause guarantees a variety of protections, including procedural due process, substantive due process, a prohibition against vague laws, incorporation of the Bill of Rights to state governments, and equal protection under the laws of the federal government.
Procedural due process ensures fair procedures in civil and criminal proceedings, while substantive due process guarantees certain fundamental rights, such as freedom of speech, assembly, religion, and the right to vote. The Supreme Court has interpreted the Due Process Clause to impose limitations on the states, incorporating the Bill of Rights' protections against them. This has been a controversial doctrine, with critics arguing that liberties should be left to the politically accountable branches of government.
The Fourteenth Amendment's Due Process Clause provides that no state may deprive any person of life, liberty, or property without due process of law, and it has been applied in two main contexts by the Supreme Court. The first context involves evaluating whether a law can be applied by states at all, regardless of the procedure followed. The second context is closely related and involves the application of the Bill of Rights to state governments, ensuring that they cannot abridge the privileges or immunities of citizens.
The concept of due process is not limited to the Fourteenth Amendment, as the Fifth Amendment also contains a Due Process Clause. This clause acts as a restraint upon the federal government, requiring it to provide procedural "due process" for the enforcement of law. The Supreme Court has interpreted the Fifth Amendment's due process clause to include an equal protection element, further protecting the rights of citizens.
The Due Process Clause has been invoked in numerous Supreme Court cases, including First Nat'l Bank of Boston v. Bellotti (1978), Citizens United v. FEC (2010), and Bolling v. Sharpe (1954). These cases have helped shape the understanding of due process and its role in protecting the fundamental rights of citizens.
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Frequently asked questions
Due process of law is a concept found in the Fifth Amendment to the US Constitution, which states that no one shall be "deprived of life, liberty or property without due process of law" by the federal government.
The Due Process Clause is found in the Fifth and Fourteenth Amendments to the US Constitution. It prohibits the federal and state governments from depriving citizens of their "life, liberty or property" without due process of law.
Substantive due process is used to evaluate whether a law can be applied by states, regardless of the procedure followed. It deals with specific subject areas, such as liberty of contract or privacy, and has been used to protect economic and noneconomic matters.
Procedural due process is the evaluation of the procedure for depriving someone of a "new property" right. It considers the nature of the property right, the adequacy of the procedure compared to other procedures, and the burdens that other procedures would impose on the state.
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