Kara Sears
Due process is a fundamental right guaranteed by the US Constitution, which protects citizens and non-citizens alike from arbitrary government decisions and ensures fairness in legal matters. The Fifth Amendment Due Process Clause prohibits the federal government from depriving citizens of their life, liberty, or property without due process of law. Similarly, the Fourteenth Amendment Due Process Clause extends this protection to state governments. However, the original meaning of the Due Process Clause has evolved over time, with the Supreme Court embracing both substantive due process and procedural due process, leading to debates about the interpretation of the Fourteenth Amendment's Due Process Clause and the rights it protects.
| Characteristics | Values |
|---|---|
| The phrase "due process of law" first appeared | in a statutory rendition of Magna Carta in 1354 during the reign of Edward III of England |
| New York was the only state that asked Congress to add "due process" language to the U.S. Constitution | N/A |
| The Due Process Clause of the Fifth Amendment | was recognized as a restraint upon the Federal Government |
| The Due Process Clause of the Fourteenth Amendment | binds the states |
| The Due Process Clause of the Fourteenth Amendment | provides that no state may deprive any person of life, liberty, or property without due process of law |
| The Due Process Clause | is a basis for various unenumerated privacy rights |
| The Due Process Clause | protects substantive due process |
| The Due Process Clause | protects procedural due process |
| The Due Process Clause | protects against cruel and unusual punishment |
| The Due Process Clause | provides protections similar to those of the Fifth Amendment's Due Process Clause |
| The Due Process Clause | applies to civil trials |
| The Due Process Clause | applies to administrative proceedings |
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What You'll Learn
- The Bill of Rights originally applied only to the federal government
- The Fourteenth Amendment extended the Bill of Rights to the states
- The Due Process Clause protects substantive rights not listed in the Constitution
- The Due Process Clause protects unenumerated rights
- Due process is a fundamental right guaranteed to all by the U.S. Constitution
The Bill of Rights originally applied only to the federal government
The original US Constitution, drafted in 1787, was remarkable for its time but had some glaring flaws. It did not include a bill of rights, and it did not apply to everyone. The "consent of the governed" only applied to propertied white men, excluding women, Native Americans, and slaves. The Constitution protected slavery and legalized racial subordination, and slaves were governed by "slave codes" that controlled their lives. They had no access to the rule of law and could be whipped, branded, imprisoned without trial, and hanged.
The absence of a bill of rights was an obstacle to the Constitution's ratification by the states. It took four more years of intense debate before the new government's form was resolved. During this time, delegates from the 13 states drafted a blueprint for self-government, which included a strong executive branch, a representative legislature, and a federal judiciary. The final Constitution set up a system of checks and balances, with each branch of government framed so that its power checked the power of the other two branches.
The Bill of Rights, written by James Madison, was added to the Constitution to address these issues and limit government power. It established soaring principles that guaranteed fundamental rights in very general terms. The first ten amendments to the Constitution safeguard freedoms like speech, religion, and the right to bear arms, while ensuring protections such as due process and trial by jury. The Tenth Amendment specifies that the Federal Government only has those powers delegated in the Constitution.
The Bill of Rights was influenced by the Virginia Declaration of Rights, written by George Mason, as well as English documents such as the Magna Carta, the Petition of Right, the English Bill of Rights, and the Massachusetts Body of Liberties. It took nearly 135 years for Congress to grant Native Americans US citizenship, and the Constitution's "race exception" was a sin that plagued the country for 78 years.
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The Fourteenth Amendment extended the Bill of Rights to the states
The Fourteenth Amendment to the US Constitution, passed by Congress on June 13, 1866, and ratified on July 9, 1868, extended liberties and rights granted by the Bill of Rights to formerly enslaved people. The Fourteenth Amendment was a response to issues affecting freed slaves following the American Civil War, and its enactment was bitterly contested.
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. The Supreme Court has interpreted the Due Process Clauses in the Fifth and Fourteenth Amendments identically, meaning that the original meaning of the former is relevant to the incorporation doctrine of the latter. The Due Process Clause of the Fourteenth Amendment has been used to incorporate the Bill of Rights against state governments, limiting their actions, and imposing on them many of the Bill of Rights' protections.
The Fourteenth Amendment also granted citizenship to "All persons born or naturalized in the United States," thereby granting citizenship to formerly enslaved people. The Fourteenth Amendment was one of three amendments submitted to the states by Congress as part of its Reconstruction program to guarantee equal civil and legal rights to Black citizens.
While the Fourteenth Amendment extended the Bill of Rights to the states, it did not initially extend them in the way that was intended by its authors. For many years, the Supreme Court ruled that the amendment did not extend the Bill of Rights to the states, and it also failed to protect the rights of Black citizens. It wasn't until after the Fourteenth Amendment's ratification, and a string of Supreme Court cases, that the same limitations on the states as the Bill of Rights were applied.
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The Due Process Clause protects substantive rights not listed in the Constitution
The Due Process Clause, found in the Fifth and Fourteenth Amendments, prohibits the government from depriving individuals of "life, liberty, or property" without due process of law. While the Fifth Amendment applies to federal government actions, the Fourteenth Amendment binds the states. The Fourteenth Amendment's Due Process Clause has been interpreted by the Supreme Court to protect both procedural and substantive due process rights.
Procedural due process refers to the procedures that the government must follow before depriving an individual of life, liberty, or property. This typically includes the right to a jury trial, where the jury determines the facts and a judge enforces the law. In criminal cases, due process protections overlap with procedural protections provided by the Eighth Amendment, which safeguards innocent people from execution as a form of cruel and unusual punishment.
Substantive due process, on the other hand, guarantees fundamental rights that are not explicitly listed in the Constitution. The Supreme Court has interpreted the Due Process Clause to protect certain unenumerated rights, such as the right to privacy, which may be inferred from the "penumbras" or shadowy edges of enumerated rights. For example, the right to privacy has been used to protect the right of interracial couples to marry, the right to use contraception, the right to abortion, the right to sexual intimacy, and the right of same-sex couples to marry.
The Court's decision to protect unenumerated rights through the Due Process Clause is supported by the Ninth Amendment, which suggests that the rights enumerated in the Constitution do not exhaust "others retained by the people." Additionally, the Fourteenth Amendment's Due Process Clause has been used to apply the Bill of Rights to the states, ensuring that the limitations on the federal government also apply to state governments.
While the scope of rights protected by substantive due process may be controversial, its theoretical basis is well-established and forms the basis for much of modern constitutional case law. The interpretation and application of substantive due process have evolved over time, with the Supreme Court grappling with how to discern and protect these rights.
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The Due Process Clause protects unenumerated rights
The Due Process Clause, found in both the Fifth and Fourteenth Amendments to the United States Constitution, prohibits the deprivation of "life, liberty, or property" without due process of law. The Fourteenth Amendment's Due Process Clause has been interpreted by the Supreme Court to protect unenumerated rights, which are rights not specifically listed in the Constitution. This interpretation is based on the idea that the Constitution does not exclusively protect rights that are explicitly mentioned, as well as the Ninth Amendment, which acknowledges the existence of rights beyond those enumerated.
The Due Process Clause has been used to protect a variety of unenumerated rights, including privacy rights, reproductive rights, and the right to direct the education and upbringing of one's children. The Supreme Court has also ruled that the Due Process Clause requires a judge to recuse themselves in certain circumstances due to a conflict of interest.
The interpretation of the Due Process Clause to protect unenumerated rights is controversial, as it gives the Supreme Court the power to impose its policy preferences on the nation. The controversy centres on the concept of "substantive due process," which has been one of the most contentious areas of Supreme Court adjudication.
The Due Process Clause has been interpreted to provide procedural due process in civil and criminal proceedings, guarantee fundamental rights, prohibit vague laws, incorporate the Bill of Rights to state governments, and ensure equal protection under federal law. The interpretation of the clause has evolved over time, with the Supreme Court adopting a more nuanced approach than the broad Goldberg standards.
The Due Process Clause serves as a safeguard for individuals' rights, ensuring that they cannot be deprived of life, liberty, or property without fair and lawful procedures. The protection of unenumerated rights through the Due Process Clause highlights the dynamic nature of constitutional interpretation and the ongoing evolution of rights and freedoms in American society.
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Due process is a fundamental right guaranteed to all by the U.S. Constitution
The Due Process Clause is found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibiting the deprivation of "life, liberty, or property" without due process of law by the federal and state governments, respectively. The U.S. Supreme Court interprets these clauses to guarantee protections such as procedural due process in civil and criminal proceedings, substantive due process (guaranteeing certain fundamental rights), a prohibition against vague laws, and equal protection under federal law.
The concept of due process has evolved over time, with the Supreme Court adopting a more nuanced approach than the broad Goldberg standards. The Court has clarified that due process is required when the state acts against individuals on "individual grounds," involving unique characteristics. This distinction was established in Bi-Metallic Investment Co. v. State Board of Equalization (1915), where the Court held that while politics control the state's action in setting tax levels, taxpayers have a right to a hearing when disputing individual liability.
Due process is a vital safeguard, particularly in the context of immigration enforcement. Recent policy changes have raised concerns about the erosion of due process rights for non-citizens, including asylum seekers, who are often expelled without traditional legal hearings. The Supreme Court has reaffirmed that the fundamental right to due process extends to everyone in the U.S., regardless of legal status, underscoring the importance of this constitutional protection.
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Frequently asked questions
Due process was not added to the First Amendment because it was added to the Fifth Amendment, which states that no person shall be "deprived of life, liberty, or property".
The Due Process Clause in the Fifth Amendment applies to federal government actions, whereas the Due Process Clause in the Fourteenth Amendment binds the states.
The phrase "due process of law" first appeared in a statutory rendition of the Magna Carta in 1354 during the reign of Edward III of England. New York was the only state that asked Congress to add "due process" language to the U.S. Constitution. In response, James Madison drafted a due process clause for Congress.
