Interactive Constitution Essay: Due Process

The Due Process Clause of the Fourteenth Amendment is the source of an array of constitutional rights, including many of our most cherished—and most controversial. Consider the following rights that the Clause guarantees against the states:

The Due Process Clause of the Fourteenth Amendment echoes that of the Fifth Amendment. The Fifth Amendment, however, applies only against the federal government. After the Civil War, Congress adopted a number of measures to protect individual rights from interference by the states. Among them was the Fourteenth Amendment, which prohibits the states from depriving “any person of life, liberty, or property, without due process of law.”

When it was adopted, the Clause was understood to mean that the government could deprive a person of rights only according to law applied by a court. Yet since then, the Supreme Court has elaborated significantly on this core understanding. As the examples above suggest, the rights protected under the Fourteenth Amendment can be understood in three categories: (1) “procedural due process;” (2) the individual rights listed in the Bill of Rights, “incorporated” against the states; and (3) “substantive due process.”

“Procedural due process” concerns the procedures that the government must follow before it deprives an individual of life, liberty, or property. The key questions are: What procedures satisfy due process? And what constitutes “life, liberty, or property”?

Historically, due process ordinarily entailed a jury trial. The jury determined the facts and the judge enforced the law. In past two centuries, however, states have developed a variety of institutions and procedures for adjudicating disputes. Making room for these innovations, the Court has determined that due process requires, at a minimum: (1) notice; (2) an opportunity to be heard; and (3) an impartial tribunal. Mullane v. Central Hanover Bank (1950).

With regard to the meaning of “life, liberty, and property,” perhaps the most notable development is the Court’s expansion of the notion of property beyond real or personal property. In the 1970 case of Goldberg v. Kelly, the Court found that some governmental benefits—in that case, welfare benefits—amount to “property” with due process protections. Courts evaluate the procedure for depriving someone of a “new property” right by considering: (1) the nature of the property right; (2) the adequacy of the procedure compared to other procedures; and (3) the burdens that other procedures would impose on the state. Mathews v. Eldridge (1976).

The Bill of Rights—comprised of the first ten amendments to the Constitution—originally applied only to the federal government. Barron v. Baltimore (1833). Those who sought to protect their rights from state governments had to rely on state constitutions and laws.

One of the purposes of the Fourteenth Amendment was to provide federal protection of individual rights against the states. Early on, however, the Supreme Court foreclosed the Fourteenth Amendment Privileges or Immunities Clause as a source of robust individual rights against the states. The Slaughter-House Cases (1873). Since then, the Court has held that the Due Process Clause “incorporates” many—but not all—of the individual protections of the Bill of Rights against the states. If a provision of the Bill of Rights is “incorporated” against the states, this means that the state governments, as well as the federal government, are required to abide by it. If a right is not “incorporated” against the states, it applies only to the federal government.

A celebrated debate about incorporation occurred between two factions of the Supreme Court: one side believed that all of the rights should be incorporated wholesale, and the other believed that only certain rights could be asserted against the states. While the partial incorporation faction prevailed, its victory rang somewhat hollow. As a practical matter, almost all the rights in the Bill of Rights have been incorporated against the states. The exceptions are the Third Amendment’s restriction on quartering soldiers in private homes, the Fifth Amendment’s right to a grand jury trial, [and] the Seventh Amendment’s right to jury trial in civil cases, and the Eighth Amendment’s prohibition on excessive fines. . . .