The Fifth Amendment of the U.S. Constitution contains a clause that prohibits the national government from depriving a person of ‘‘life, liberty, or property, without due process of law.’’ The Fourteenth Amendment has a similarly worded clause that applies to state governments. Other than applying to different levels of government, the two clauses have the same basic meaning.
In its most general sense, due process of law is another term for rule of law, the principle that government cannot act against persons unless it has a legal basis for doing so. This principle does not preclude most government takings of life, liberty, and property, but only those that are arbitrary or capricious in nature. More specifically, due process of law requires that in order to deprive a person of life, liberty, or property, the government must notify the person that it wants to do just that and then must, in a fair hearing, convince an impartial judge or court that the person has violated some previously enacted, but valid, law.
In this general sense, due process of law has an ancient lineage. As early as 1215, it was guaranteed by the Magna Carta, one of several documents that now make up the English Constitution. Therein, the king of England promised that ‘‘[n]o freeman shall be arrested, or imprisoned, or disseized, or outlawed, or exiled, or in any way molested; nor will we proceed against him, unless by the lawful judgment of his peers or by the law of the land.’’ The principle of due process of law was reaffirmed in the Petition of Right (1628), for it said that English freemen could ‘‘be imprisoned or detained only by the law of the land, or by due process of law, and not by the king’s special command without any charge.’’ It was also at the heart of John Locke’s Second Treatise of Government (1690), which significantly influenced the thinking of those who established the American political system. Before the Constitution was ratified, most state constitutions had a due process clause.
Although the general meaning of the two due-process clauses is clear, exactly what kinds of government actions violate the clauses is not clear. In its first case interpreting the due-process clause of the Fifth Amendment, the Supreme Court said, ‘‘The Constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process’’ (Murray’s Lessee v. Hoboken Land and Improvement Company, 18 How., 59 U.S., 272, 1856). Consequently, the Court has had to spell out exactly what due process of law means, and in doing so, it has significantly expanded its power of judicial review and generated considerable controversy.
The Court’s decisions interpreting the clauses fall into two categories: (1) those dealing with procedural due process (whether the application or enforcement of a law violated due process) and (2) those dealing with substantive due process (whether a law itself violated due process).
Issues involving procedural due process usually arise in criminal cases in which the Court must decide whether a person’s conviction of a crime resulted from a fair judicial proceeding. As for what counts as a fair proceeding, until approximately the 1960s, the Court’s answer depended on which of the two due-process clauses it was interpreting. The Court has said relatively little about the procedural due process guaranteed by the Fifth Amendment, mainly because there are other provisions in the Bill of Rights that guarantee, as against the federal government, specific aspects of procedural due process. Quite different has been the Court’s interpretation of the Due Process Clause of the Fourteenth Amendment. Because it was the only constitutional provision the Court could use to guarantee procedural due process in state criminal proceedings, the Court has written much about its meaning.
At first, however, the Court interpreted that clause rather narrowly. For example, it said that the clause does not require states to use a grand jury as the way to indict persons of capital crimes (Hurtado v. California, 110 U.S. 516, 1884) or prohibit them from requiring persons accused of crimes to answer questions at their trials (Twining v. New Jersey, 211 U.S. 78, 1908). In the latter case, however, the Court said:
It is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, . . . If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law.
By the 1920s, the Court began using the Due Process Clause of the Fourteenth Amendment to overturn convictions that it felt had not been fairly obtained. For example, in Moore v. Dempsey, 261 U.S. 86 (1923), it overturned the convictions of five black men for murder because their trial was so influenced by a racially prejudiced mob that the Court held that it was a travesty. Most importantly, in Brown v. Mississippi, 297 U.S. 278 (1936), the Court unanimously held that states could not use coerced confessions to convict persons of crimes.
Decisions like these, however, were usually the result of the Court’s examining fully and carefully the record of what occurred before and during a trial. Even in the famous case of Powell v. Alabama, 287 U.S. 45 (1932), in which the Court overturned the convictions of nine black teenagers for raping two white girls (on the grounds that they were denied aid of counsel), it did not hold that in all criminal or even felony trials the Due Process Clause requires that the accused be afforded effective counsel. Rather, the Court justified its decision on the basis of the circumstances of the case and the characteristics of the defendants. Not surprisingly, five years later, in Palko v. Connecticut, 302 U.S. 319 (1937), the Court refused to hold that a right against double jeopardy is part of procedural due process guaranteed by the Fourteenth Amendment. It did so on the grounds that specific procedural rights mentioned in the Bill of Rights, like the right against double jeopardy, are not ‘‘fundamental’’ rights ‘‘implicit in the concept of ordered liberty.’’
In the mid-twentieth century, however, the Court changed its mind on this issue. It decided that most of the rights of the accused guaranteed in the Bill of Rights were included within the procedural due process guaranteed by the Fourteenth Amendment. It held in 1949 that unreasonable searches and seizures like those prohibited by the Fourth Amendment cannot be conducted by state officials without violating due process of law (Wolf v. Colorado, 338 U.S. 25, 1949) and, in 1961, that evidence obtained through such unconstitutional searches and seizures cannot be used in state courts against persons accused of a crime (Mapp v. Ohio, 367 U.S. 643, 1961).
After that, the Court held that due process of law means that persons accused of serious crimes not only have a right to counsel, but also must be provided with a lawyer by the state if they do not have the means to pay for one (Gideon v. Wainwright, 372 U.S. 335, 1963); that persons tried in state courts cannot be forced to answer questions or testify in their defense (Malloy v. Hogan, 378 U.S. 1, 1964); and that defendants in state courts must be given the opportunity to confront and cross-examine witnesses against them (Pointer v. Texas, 380 U.S. 400, 1965). Klopfer v. North Carolina, 386 U.S. 213 (1967), required states to provide speedy trials to persons accused of crimes; Duncan v. Louisiana, 391 U.S. 145 (1968), said that persons accused of serious crimes have a right to be tried by juries in state courts; and Benton v. Maryland, 395 U.S. 784 (1969), held that states cannot try persons more than once for the same crime.
Since the 1960s, although the Supreme Court has elaborated on the meaning of the specific rights mentioned in the preceding paragraph, it has not created any additional procedural due-process rights. It could still do this, however. Moreover, the Court can always declare any deprivation of life, liberty, and property to be a violation of procedural due process if it believes that all the facts in a case show that the deprivation was the product of an unfair procedure.
Finally, the Court has held that procedural due process (a fair hearing of some sort) must also be afforded in various kinds of noncriminal (for example, civil, administrative, juvenile) proceedings that could lead to the loss of a person’s liberty or property. What exactly is required in such proceedings? The Court has said that a variety of processes and hearings, depending on the situation, can work to ensure due process of law and legislatures have a role to play in determining what is required (Bell v. Burson, 402 U.S. 535, 1971), but that ‘‘the hearing must provide a real test’’ (Fuentes v. Shevin, 407 U.S. 67, 1972).
The constitutional law of substantive due process is quite different from and more controversial than that of procedural due process. Here the basic issue is whether a law, as distinguished from its application or enforcement, is inconsistent with due process of law. When the Supreme Court first addressed the meaning of the Due Process Clause of the Fifth Amendment, it said, ‘‘The article is a restraint on the legislative as well as on the executive and judicial powers of the government . . .’’ (Murray’s Lessee v. Hoboken Land and Improvement Company, 1856). Later, the Court said, ‘‘It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power’’ (Hurtado v. California, 1884).
Laws can violate the principle of due process of law in four ways. First, they can do so if they require judges or law enforcement officials to use a procedure inconsistent with procedural due process. The Court has thus said, ‘‘It is manifest that it was not left to the legislative power to enact any process which might be devised’’ (Murray’s Lessee v. Hoboken Land and Improvement Company, 1856). An example of a law that authorized a procedure inconsistent with due process of law was the one struck down in Chicago, Milwaukee and St. Paul Ry. Co. v. Minnesota, 134 U.S. 118 (1890), which gave a regulatory commission the power to set the rates for railroads without holding hearings and allowing the railroads to present evidence.
Second, a law violates due process if it is arbitrary or inherently unfair. The emphasis here is not on a law’s effect—the liberty or property that it takes, prohibits, or regulates—but on its nature as law. Even if the liberty or property it takes is very minor, a law can still violate due process if it does not possess the requisite character of law. On this point, the Court has said, ‘‘It [a law] must be not a special rule for a particular person or a particular case,’’ but a ‘‘general law’’ . . . Arbitrary power . . . is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude’’ (Hurtado v. California, 1884).
How might a law, regardless of its effects on liberty or property, be unfair or arbitrary? Two examples of such a law are bills of attainder and ex post facto laws, both of which are explicitly prohibited in Article One, sections 9 and 10, of the Constitution. Bills of attainder are unfair because they inflict punishment on specified persons even though a court of law has not found them guilty of violating any existing laws, and ex post facto laws are equally unfair because they apply retroactively and thereby punish persons for doing something that was not illegal when they did it. Very similar to these kinds of laws are ‘‘acts of confiscation,’’ ‘‘acts directly transferring one man’s estate to another,’’ and legislative acts deciding specific cases that should have been decided by courts or reversing decisions already made by courts (Hurtado v. California, 1884).
Another kind of law that the Supreme Court considers to be arbitrary, regardless of what it regulates or prohibits, is one that has no ‘‘rational basis’’—that is, that serves no public purpose or interest. When a law deprives persons of their life, liberty, or property for no apparent reason relating to the common good, the Court is likely to assume that it is the result of a legislature’s incompetence or animosity toward those harmed by the law.
Third, a law violates due process if it is ‘‘so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . .’’ (Connally v. General Construction Co., 269 U.S. 385, 1926). On the other hand, because of the inherent imprecision of language and the need for government to do its business without having to be perfect, the Court has also said that ‘‘no more than a reasonable degree of certainty can be demanded’’ (Boyce Motor Lines Inc. v. United States, 342 U.S. 337, 1952).
Fourth, even if a law is not inherently arbitrary, unfair, or unclear, it may still violate due process of law if it deprives persons of an especially important private interest (liberty or property). As early as 1875, the Court used the term ‘‘fundamental rights’’ to refer to the especially important private interests protected by the due process clauses (United States v. Cruikshank, 92 U.S. 542, 1975). What rights are fundamental? The Court’s answer to this question has evolved over time. Traditionally, the ‘‘liberty’’ that could not be taken without due process of law was that of freedom from physical restraint or imprisonment, but now the word refers to a range of behaviors that the Court believes deserve special protection from legislation.
Whatever these fundamental rights are, however, they are not absolute; they can be abridged by the government if it can make a strong enough case for doing so. This means that in cases involving government regulation of fundamental rights, the Court must utilize some kind of criterion or ‘‘test’’ to determine whether the government’s reasons for the regulation are strong enough to justify the regulation. There are, moreover, different tests for different kinds of fundamental rights and they, like the rights, have changed over time. This fourth component of substantive due process has been, by far, the most significant part of the Court’s interpretation of the two due process clauses, and its development has been long, complicated, and very controversial.
The idea of substantive due process seems to have arisen first in 1856 in the Court of Appeals of New York, which in Wynehamer v. People, 13 N.Y. 378 (1856), declared a New York law prohibiting the possession of liquor to be in violation of that state’s due-process clause. One year later, in the infamous case of Dred Scott v. Sandford, 19 How. (60 U.S.) 393 (1857), the U.S. Supreme Court used the Due Process Clause of the Fifth Amendment to strike down the portion of the Missouri Compromise that excluded slavery from certain U.S. territories. It held that ‘‘[a]n act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.’’ Then, in Hepburn v. Griswold, 8 Wallace 608 (1870), the Court implied that a federal law that authorized the national government to issue paper money that was not redeemable in hard currency but was legal tender for payment of all debts deprived creditors of their property without due process of law guaranteed by the Fifth Amendment. In record time, however, the Court reversed itself and upheld the law in Second Legal Tender Cases, 12 Wallace 457 (1871).
In the meantime, in 1868, the Fourteenth Amendment was added to the Constitution. In addition to prohibiting states from abridging ‘‘the privileges or immunities of citizens of the United States’’ and denying ‘‘to any person . . . the equal protection of the laws,’’ it prohibited them from depriving ‘‘any person of life, liberty, or property, without due process of the laws.’’
In the Slaughterhouse Cases, 16 Wall. (83 U.S.) 36 (1873), the Court was asked to hold that all three of these provisions were violated by a Louisiana law that, for public health reasons, gave one company a monopoly on the slaughtering of animals in the New Orleans area. The plaintiffs who challenged the law were the slaughterers who had been put out of business. Their attorney argued that they had a natural right to practice their trade and that the three provisions were intended to protect that right as well as individual freedom and free enterprise in general. He also argued that the due process clause guaranteed more than procedural due process. Although the Court upheld the law, the idea of substantive due process was given credibility, not only by the plaintiffs’ attorney but also by one of the four dissenters, Justice Joseph Bradley, who wrote, ‘‘[A] law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law.’’
Not surprisingly, therefore, in spite of the Slaughterhouse Cases decision, attorneys for businesses, corporations, and others whose property rights were threatened by legislation continued to press the Supreme Court to interpret both due process clauses as guaranteeing substantive, and not merely procedural, due process.
Although during the 1870s and 1880s, the Court resisted using the due process clause to strike down laws, its dicta in several cases and a growing number of dissenting opinions indicated that it was becoming more sympathetic to the idea of substantive due process. Noteworthy is what the Court said in Mugler v. Kansas, 123 U.S. 623 (1887): ‘‘The courts are not bound by mere forms. They are at liberty—indeed are under a solemn duty—to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority.’’
The breakthrough came in the 1890s. First, the Court struck down rates established for railroads by different state regulatory commissions as ‘‘unreasonable’’ and thus as deprivations of property without due process of law. Then, in Allgeyer v. Louisiana, 165 U.S. 578 (1897), which nullified a Louisiana law that banned businesses in that state from buying insurance from companies not licensed to do business in that state, the Court enunciated freedom of contract as a fundamental right protected by the due process clause of the Fourteenth Amendment. In essence, this right meant that individuals and businesses could enter into contracts without the state’s dictating the parties to or terms of the contracts.
After Allgeyer, the Court used the Due Process Clause of the Fourteenth Amendment and the doctrine of liberty of contract to overturn state laws that limited the number of hours that bakers could work (Lochner v. New York, 198 U.S. 45, 1905); outlawed yellow-dog contracts (promises by workers not to join labor unions) (Coppage v. Kansas, 236 U.S. 1, 1915); forbade courts to issue injunctions against picketing (Truax v. Corrigan, 257 U.S. 312, 1921); created a special court to handle labor disputes (Wolf Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 1923); and set minimum wages for employees (Morehead v. Tipaldo, 298 U.S. 587, 1936). The Court also used the Due Process Clause of the Fifth Amendment to nullify federal laws that banned yellow-dog contracts (Adair v. United States, 208 U.S. 161, 1908) and set minimum wages for female employees in the District of Columbia (Adkins v. Children’s Hospital, 261 U.S. 525, 1923).
During this same period, the Court actually upheld many more laws challenged as violations of due process of law than it overturned. What was the difference between the laws upheld and those not upheld? According to the Court, the laws that were nullified were ‘‘unreasonable’’—in purpose, in the means for achieving that purpose, or in the degree of restraint imposed upon liberty or property. Sometimes the Court contended that a law was ‘‘arbitrary,’’ by which it usually meant that the restrictions it imposed were more severe than its benefits to the public. Both tests were very vague, and their use allowed the Court to make decisions of the sort traditionally reserved to legislatures, thereby greatly enhancing its power of judicial review.
When the Court first began using substantive due process to nullify laws, the rights that it protected were primarily property rights, such as freedom to choose and practice an occupation and freedom of contract. However, it soon occurred to some justices and lawyers that if the due process clauses could be used to protect property rights, they could and should also be used to protect other ‘‘fundamental rights.’’ For example, in dissenting opinions, Justices Harlan and Marshall contended that the rights to free speech and press, the ‘‘right to enjoy one’s religious belief, unmolested by any human power,’’ and the ‘‘right to impart and receive instruction’’ were protected by the due process of law (Patterson v. Colorado, 205 U.S. 454, 1907; Berea College v. Kentucky, 211 U.S. 548, 1908). Other justices made similar statements.
Not surprisingly, therefore, in Meyer v. Nebraska, 262 U.S. 390 (1923), which nullified a Nebraska law forbidding the teaching in schools of any language other than English, the Court said that the liberty protected by the due process clause includes not only ‘‘freedom from bodily restraint’’ and economic rights, but also the right ‘‘to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’’ Two years later, on the grounds that the right of parents to direct the education of their children was a fundamental right protected by due process of law, it overturned an Oregon law that made private schools illegal (Pierce v. Society of Sisters, 268 U.S. 510, 1925). Then, just one week later, in New York v. Gitlow, 268 U.S. 652 (1925), the Court said that ‘‘freedom of speech and of the press . . . are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment . . .’’
Other substantive rights guaranteed in the First Amendment were gradually added to the list of rights protected by the Due Process Clause of the Fourteenth Amendment—freedom of assembly in 1937, De Jonge v. Oregon, 299 U.S. 353 (1937), free exercise of religion in 1940 (Cantwell v. Connecticut, 310 U.S. 296, 1940) and in 1947 the ban on laws respecting an establishment of religion (Everson v. Board of Education, 330 U.S. 1, 1947).
Some scholars and Supreme Court justices use the phrase ‘‘selective incorporation of the Bill of Rights into the due process clause of the Fourteenth Amendment’’ to describe the process whereby First Amendment rights and certain procedural rights (discussed in ‘‘Procedural Due Process’’ in this entry) guaranteed in the Bill of Rights were included within the meaning of the Due Process Clause of the Fourteenth Amendment and thus protected from state laws and actions. The ‘‘incorporation’’ is said to be ‘‘selective’’ because it happened gradually and because the Court has never held that due process of law includes all the rights guaranteed in the Bill of Rights. (For example, the right to be indicted by a grand jury has never been incorporated.)
Ironically, not long after the Court decided that certain nonproperty rights were among the fundamental rights protected from legislation by due process of law, it changed its mind about the importance of property or economic rights. In several decisions in the 1930s, the Court upheld state and federal laws that had been passed to deal with the economic problems caused by the Great Depression but had been challenged on the grounds that they violated liberty of contract and related property rights. The Court upheld the laws and, in United States v. Carolene Products Co., 304 U.S. 144 (1938), explicitly stated that economic regulations would be upheld in the face of due process challenges provided they had a ‘‘rational basis’’—a test that most laws could easily pass. In contrast, it said that laws that abridge other fundamental rights, especially those specifically mentioned in the Bill of Rights, and that are challenged as violations of due process of law would be subjected to a much higher level of scrutiny. This difference in treatment of economic and noneconomic rights is often referred to as the ‘‘double standard.’’
Once the Court decided to use substantive due process to protect noneconomic rights, it did not stop with those explicitly mentioned in the Constitution. In Griswold v. Connecticut, 381 U.S. 479 (1965), it held that a right to privacy was a fundamental right protected by due process of law, which, it later held, included within it the right of a pregnant women to abort a fetus prior to its viability (Roe v. Wade, 410 U.S. 93, 1973). The Court has said that substantive due process also protects the right of extended family members to live together (Moore v. City of East Cleveland, 431 U.S. 494, 1977); the right of a competent person to refuse unwanted medical treatment (Cruzan v. Missouri, 497 U.S. 261, 1990); and the right of parents alone (and not others) to rear their children (Troxel v. Granville, 530 U.S. 57, 2000). In Lawrence v. Texas, 539 U.S. 558 (2003), the Court held that the liberty protected by due process includes the liberty of consenting adults, including those of the same sex, to engage in whatever private sexual conduct they choose.
Many of these decisions were justified on the basis of the Ninth Amendment, which says, ‘‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’’ During the period in which it decided to protect the previously mentioned rights, however, the Court also declined to use substantive due process to protect a range of other behaviors or ‘‘rights’’ because it did not feel they were fundamental.
Perhaps the Court’s most extreme expansion of substantive due process occurred in 1954, the year it used the Equal Protection Clause of the Fourteenth Amendment to nullify state laws requiring that public schools be racially segregated. Because there is no equal protection clause that applies to the federal government, in Bolling v. Sharpe, 347 U.S. 497 (1954), it used the Due Process Clause of the FifthAmendment to prohibit segregated public schools in the District of Columbia. The Court thereby essentially equated the equal protection and due process clauses of the Constitution, and it now uses the Due Process Clause of the FifthAmendment to nullify any congressional law that, if passed by a state, would violate the equal protection clause of the Fourteenth Amendment.
In summary, the scope of the due process of law guaranteed by the Fifth and Fourteenth Amendments is quite large and expanding. It prohibits laws from being enforced or applied in a way that violates the specific rights of the accused listed in the Bill of Rights or that violates the general principle of fairness. It also prohibits laws that are unfair, unclear, or restrictive of First Amendment freedoms and other substantive rights that the Court has deemed or may yet deem to be fundamental. Although the Court has been fairly restrained about increasing the rights it considers fundamental, in the future that could change.
ELLIS M. WEST
References and Further Reading
Barnett, Randy, ed. The Rights Retained by the People: The History and Meaning of the Ninth Amendment. Fairfax, VA: George Mason University Press, 1989.
Bodenhamer, David. Fair Trial: Rights of the Accused in American History. New York: Oxford University Press, 1992.
Cortner, Richard C. The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties. Madison: University of Wisconsin Press, 1981.
Ely, James W. The Guardian of Every Other Right: A Constitutional History of Property Rights. New York: Oxford University Press, 1992.
Garrow, David J. Liberty & Sexuality: The Right to Privacy and the Making of Roe v. Wade. New York: MacMillan, 1994.
Hamilton, Walton H. ‘‘The Path of Due Process of Law.’’ Ethics 48 (April 1938):269–296.
Keynes, Edward. Liberty, Property, and Privacy: Toward a Jurisprudence of Substantive Due Process. University Park: Pennsylvania State University Press, 1996.
Levy, Leonard W. Origins of the Fifth Amendment. New York: Oxford University Press, 1968.
Orth, John V. Due Process of Law: A Brief History, Lawrence: University Press of Kansas, 2003.
Paul, Ellen F., and Howard Dickman. Liberty, Property, and the Future of Constitutional Development. Albany: State University of New York Press, 1990.
Seigan, Bernard. Economic Liberties and the Constitution. Chicago: University of Chicago Press, 1980.
Warren, Charles, The New ‘‘Liberty’’ Under the Fourteenth Amendment, Harvard Law Review 39 (1926): 431–465.
Cases and Statutes Cited
See also Application of First Amendment to States; Capital Punishment: Due Process Limits; Due Process in Immigration; Economic Rights in the Constitution; Incorporation Doctrine; Incorporation Doctrine and Free Speech; Privileges and Immunities (XIV); Retained Rights (Ninth Amendment); Vagueness and Overbreadth in Criminal Statutes; Vagueness Doctrine