The Due Process Clause

The Fifth and Fourteenth Amendments forbid the federal and state governments from depriving any person of life, liberty, or property "without due process of law." The clause is the foundation of both procedural fairness and a body of substantive rights.

The phrase "due process of law" appears in two places in the Constitution. The Fifth Amendment, ratified in 1791, binds the federal government. The Fourteenth Amendment, ratified in 1868, binds the states. Both contain the same core guarantee: no person shall be deprived of life, liberty, or property without due process of law. The clause has been interpreted to do two distinct kinds of work. Procedural due process requires that when the government acts against a person's life, liberty, or property, it must provide fair procedures, generally notice and an opportunity to be heard before a neutral decisionmaker. The exact procedures required depend on the stakes and the kind of decision being made. Substantive due process holds that some liberties are so fundamental that no amount of process can justify their infringement. The doctrine is older than the Fourteenth Amendment and has been used at different points in American history to protect different interests. The Court used it in the late nineteenth and early twentieth centuries to strike down economic regulation, an approach associated with Lochner v. New York in 1905. That use was repudiated after the New Deal. In the second half of the twentieth century, the Court used substantive due process to recognize rights to marriage, contraception, and privacy. It has also served as the vehicle for incorporating most of the Bill of Rights against the states. Substantive due process has been one of the most contested doctrines in American constitutional law. Its defenders argue that some liberties are deeper than any text. Its critics argue that judges should not draw on the Due Process Clause to read in rights the Constitution does not enumerate.