Scope The
Supreme Court has interpreted the Due Process Clauses in the Fifth and Fourteenth Amendment identically, as Justice
Felix Frankfurter once explained in a concurring opinion: In 1855, the Supreme Court explained that, to ascertain whether a process is due process, the first step is to "examine the constitution itself, to see whether this process be in conflict with any of its provisions". In the same 1855 case, the Supreme Court said, In the 1884 case of
Hurtado v. California, the Court said: Due process also applies to the creation of taxing districts, as taxation is a deprivation of property. Due process typically requires public hearings prior to the creation of a taxing district. Justice
Antonin Scalia wrote "it is well established that the Fifth Amendment entitles
aliens [non-citizens] to due process of law in deportation proceedings." in a concurring opinion on the case
Reno v. Flores, 507 U.S. 292 (1993) relating to illegal or
undocumented immigrants.
"State" Due process applies to U.S. territories, although they are not States.
"Person" The Due Process Clauses apply to both natural persons, including citizens and non-citizens, as well as to "legal persons" (that is,
corporate personhood). The Fifth Amendment's Due Process Clause was first applied to corporations in 1893 by the Supreme Court in
Noble v. Union River Logging R. Co. Noble was preceded by
Santa Clara County v. Southern Pacific Railroad in 1886. The Due Process Clauses apply to non-citizens within the United States – no matter whether their presence may be or is "unlawful, involuntary or transitory"
"Life" In
Bucklew v. Precythe, 587 U.S. 119 (2019), the Supreme Court held that the Due Process Clause expressly allows the
death penalty in the United States because "the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a 'capital' crime and 'deprived of life' as a penalty, so long as proper procedures are followed".
"Liberty" The U.S. Supreme Court has interpreted the term "liberty" in the Due Process Clauses broadly: Courts will often discuss a right under the Due Process Clause in terms of a "liberty interest" created by the constitution, a statute, or inherent in being a person.
State actor The prohibitions of the due process clauses apply only to the actions of
state actors and not against private citizens. However, "[p]rivate persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law. ... To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents".
Procedural due process Procedural due process requires government officials to follow fair procedures before depriving a person of
life,
liberty, or
property. When the government seeks to deprive a person of one of those interests, procedural due process requires the government to afford the person, at minimum, notice, an opportunity to be heard, and a decision made by a neutral decisionmaker. This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. The article "Some Kind of Hearing" written by Judge
Henry Friendly created a list of basic due process rights "that remains highly influential, as to both content and relative priority". These rights, which apply equally to civil due process and criminal due process, are: As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them. To put it more simply, where an individual is facing a deprivation of life, liberty, or property, procedural due process mandates that they are entitled to adequate notice, a hearing, and a neutral judge. The Supreme Court has formulated a
balancing test to determine the rigor with which the requirements of procedural due process should be applied to a particular deprivation, for the obvious reason that mandating such requirements in the most expansive way for even the most minor deprivations would bring the machinery of government to a halt. The Court set out the test as follows: "[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Procedural due process has also been an important factor in the development of the law of
personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it whatsoever. A significant portion of U.S. constitutional law is therefore directed to what kinds of connections to a state are enough for that state's assertion of jurisdiction over a nonresident to comport with procedural due process. The requirement of a neutral judge has introduced a constitutional dimension to the question of whether a judge should recuse themself from a case. Specifically, the Supreme Court has ruled that in certain circumstances, the Due Process Clause of the Fourteenth Amendment requires a judge to recuse themself on account of a potential or actual
conflict of interest. For example, in
Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the
Supreme Court of Appeals of West Virginia could not participate in a case involving a major donor to his election to that court.
Criminal procedural due process In criminal cases, many of these due process protections overlap with procedural protections provided by the
Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being executed, which would be an obvious example of cruel and unusual punishment. An example of criminal due process rights is the case
Vitek v. Jones, 445 U.S. 480 (1980). The due process clause of the Fourteenth Amendment requires certain procedural protections for state prisoners who may be transferred involuntarily to a state mental hospital for treatment of a mental disease or defect, such protections including written notice of the transfer, an adversary hearing before an independent decision-maker, written findings, and effective and timely notice of such rights. As established by the district court and upheld by the U.S. Supreme Court in
Vitek v. Jones, these due process rights include:); and • Effective and timely notice of all the foregoing rights.
Substantive due process By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme Court to mean that "it was not left to the legislative power to enact any process which might be devised. The due process article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will." The term "substantive due process" began to take form in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions. SDP involves liberty-based due process challenges which seek certain outcomes instead of merely contesting procedures and their effects; in such cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope. Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights have long histories or "are deeply rooted" in American society. The courts have largely abandoned the
Lochner era approach (c. 1897–1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect
freedom of contract. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions, and alternatively they could be protected by legislatures. The Court focuses on three types of rights under substantive due process in the
Fourteenth Amendment, which originated in
United States v. Carolene Products Co., , footnote 4. Those three types of rights are: • the first eight amendments in the
Bill of Rights (e.g., the
Eighth Amendment); • restrictions on the political process (e.g., the rights of voting, association, and free speech); and • the rights of "discrete and insular minorities". See U.S. V. Carolene Products Co. (1938). The Court usually looks first to see if there is a
fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a
rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies
strict scrutiny. This test inquires into whether there is a
compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest. Privacy, which is not explicitly mentioned in the Constitution, was at issue in
Griswold v. Connecticut (1965), wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "
penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights. The penumbra-based rationale of
Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights. Although it has never been the majority view, some have argued that the
Ninth Amendment (addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by
Justice Goldberg concurring in
Griswold.
Void for vagueness The courts have generally determined that laws which are too vague for the average citizen to understand deprive citizens of their rights to due process. If an average person cannot determine who is regulated, what conduct is prohibited, or what punishment may be imposed by a law, courts may find that law to be
void for vagueness. See
Coates v. Cincinnati, where the word "annoying" was deemed to lack due process insertion of fair warning.
Incorporation of the Bill of Rights Incorporation is the legal doctrine by which the
Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's due process clause. The basis for incorporation is substantive due process regarding substantive rights enumerated elsewhere in the Constitution, and procedural due process regarding procedural rights enumerated elsewhere in the Constitution. Incorporation started in 1897 with a takings case, continued with
Gitlow v. New York (1925), which was a
First Amendment case, and accelerated in the 1940s and 1950s.
Justice Hugo Black famously favored the jot-for-jot incorporation of the entire Bill of Rights. Justice
Felix Frankfurter, however—joined later by Justice
John M. Harlan—felt that the federal courts should only apply those sections of the Bill of Rights that were "fundamental to a scheme of ordered liberty". It was the latter course that the
Warren Court of the 1960s took, although almost all of the Bill of Rights has now been incorporated jot-for-jot against the states. The latest Incorporation is the
Excessive Fines Clause of the
Eighth Amendment; see
Timbs v. Indiana, 586 U.S. ____ (2019). The role of the incorporation doctrine in applying the guarantees of the Bill of Rights to the states is just as notable as the use of due process to define new fundamental rights that are not explicitly guaranteed by the Constitution's text. In both cases, the question has been whether the right asserted is "fundamental", so that, just as not all proposed "new" constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states. Some people, such as Justice Black, have argued that the
Privileges or Immunities Clause of the Fourteenth Amendment would be a more appropriate textual source for the incorporation doctrine. The Court has not taken that course, and some point to the treatment given to the Privileges or Immunities Clause in the 1873
Slaughter-House Cases as a reason why. Although the
Slaughter-House Court did not expressly preclude application of the Bill of Rights to the states, the clause largely ceased to be invoked in opinions of the Court following the
Slaughter-House Cases, and when incorporation did begin, it was under the rubric of due process. Scholars who share Justice Black's view, such as
Akhil Amar, argue that the Framers of the Fourteenth Amendment, like Senator
Jacob Howard and Congressman
John Bingham, included a Due Process Clause in the Fourteenth Amendment for the following reason: "By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would ... have prevented states from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens." The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process, and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter. When the Bill of Rights was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross", as
James Madison put it.
Roger Sherman explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution". Thus, the states were allowed to reject the Sixth Amendment, for example, while ratifying all of the other amendments including the Due Process Clause; in that case, the rights in the Sixth Amendment would not have been incorporated against the federal government. The doctrine of incorporating the content of other amendments into "due process" was thus an innovation, when it began in 1925 with the
Gitlow case, and this doctrine remains controversial today.
Reverse incorporation of equal protection In
Bolling v. Sharpe , the Supreme Court held that "the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive." The Court thus interpreted the Fifth Amendment's due process clause to include an equal protection element. In
Lawrence v. Texas the Supreme Court added: "Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests."
Levels of scrutiny When a law or other act of government is challenged as a violation of individual liberty under the due process clause, courts nowadays primarily use two forms of scrutiny, or
judicial review, which is used by the Judicial Branch. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—
strict scrutiny—is used. To pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest. When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right,
rational basis review is used. Here a legitimate government interest is enough to pass this review. There is also a middle level of scrutiny, called
intermediate scrutiny, but it is primarily used in Equal Protection cases rather than in Due Process cases.
Remedies The Court held in 1967 (in
Chapman v. California) that "we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights". ==Criticism==