[1][2][3] The U.S. Supreme Court interprets these clauses to guarantee a variety of protections: procedural due process (in civil and criminal proceedings); substantive due process (a guarantee of some fundamental rights); a prohibition against vague laws; incorporation of the Bill of Rights to state governments; and equal protection under the laws of the federal government.
The clause in the Fifth Amendment to the United States Constitution provides: No person shall ... be deprived of life, liberty, or property, without due process of law.
[6]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, as follows: No man of what state or condition he be, shall be put out of his lands or tenements nor taken (taken to mean arrested or deprived of liberty by the state), nor disinherited, nor put to death, without he be brought to answer by due process of law.
New York ratified the U.S. Constitution and proposed the following amendment in 1788: [N]o Person ought to be taken imprisoned or disseized of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law.
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"[17] – although the U.S. Supreme Court has recognized that non-citizens can be stopped, detained, and denied past immigration officials at points of entry (e.g. at a port or airport) without the protection of the Due Process Clause because, while technically on U.S. soil, they are not considered to have entered the United States.
Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.
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".
For example, in 1934, the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental".
[26] 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.
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.
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.
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.
[37][38] The Court focuses on three types of rights under substantive due process in the Fourteenth Amendment,[39] which originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4.
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.
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.
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.
[45] 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".
In Bolling v. Sharpe 347 U.S. 497 (1954), 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."
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.
[48] To pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.
[50] Critics of a substantive due process often claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford.
Additionally, the first appearance of a substantive due process as a concept arguably appeared earlier in the case of Bloomer v. McQuewan, 55 U.S. 539 (1852), so that Chief Justice Taney would not have been entirely breaking ground in his Dred Scott opinion when he pronounced the Missouri Compromise unconstitutional because, among other reasons, an "act of Congress that deprived a citizen 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 offence against the laws, could hardly be dignified with the name of due process of law".
Oliver Wendell Holmes Jr., a realist, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents:[52] I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States.
In his book Democracy and Distrust, non-originalist John Hart Ely criticized "substantive due process" as a glaring non-sequitur.