Due Process Clause


A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibit the deprivation of "life, liberty, or property" by the federal and state governments, respectively, without due process of law.
The U.S. Supreme Court interprets these clauses to guarantee a variety of protections: procedural due process ; substantive due process ; a prohibition against vague laws; incorporation of the Bill of Rights to state governments; and equal protection under the laws of the federal government.

Text

The clause in the Fifth Amendment to the United States Constitution provides:
The clause in Section One of the Fourteenth Amendment to the United States Constitution provides:

Background

Clause 39 of the original Magna Carta provided:
Clause 29 of the 1297 Magna Carta, the edition that was in force at the time of independence and still in force today in England and Wales, reads, in its official translation in The Statutes of the Realm:
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:

Drafting

was the only state that asked Congress to add "due process" language to the U.S. Constitution. New York ratified the U.S. Constitution and proposed the following amendment in 1788:
In response to this proposal from New York, James Madison drafted a due process clause for Congress. Madison cut out some language and inserted the word without, which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed after Madison explained that the due process clause would not be sufficient to protect various other rights:

Interpretation

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 to due process of law in deportation proceedings." in a concurring opinion on the case Reno v. Flores, 507 U.S. 292 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". 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" – although the U.S. Supreme Court has recognized that non-citizens can be stopped, detained, and denied past immigration officials at points of entry 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.

"Life"

In Bucklew v. Precythe, 587 U.S. 119, 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, "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:
  1. An unbiased tribunal.
  2. Notice of the proposed action and the grounds asserted for it.
  3. Opportunity to present reasons why the proposed action should not be taken.
  4. The right to present evidence, including the right to call witnesses.
  5. The right to know opposing evidence.
  6. The right to cross-examine adverse witnesses.
  7. A decision based exclusively on the evidence presented.
  8. Opportunity to be represented by counsel.
  9. Requirement that the tribunal prepare a record of the evidence presented.
  10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

    Civil procedural due process

Procedural due process is essentially based on the concept of "fundamental fairness". 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". 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: "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., 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. 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:
  1. Written notice to the prisoner that a transfer to a mental hospital is being considered;
  2. A hearing, sufficiently after the notice to permit the prisoner to prepare, at which disclosure to the prisoner is made of the evidence being relied upon for the transfer and at which an opportunity to be heard in person and to present documentary evidence is given;
  3. An opportunity at the hearing to present testimony of witnesses by the defense and to confront and cross-examine witnesses called by the state, except upon a finding, not arbitrarily made, of good cause for not permitting such presentation, confrontation, or cross-examination;
  4. An independent decision-maker;
  5. A written statement by the fact-finder as to the evidence relied on and the reasons for transferring the inmate;
  6. Availability of legal counsel, furnished by the state, if the inmate is financially unable to furnish his own ; and
  7. Effective and timely notice of all the foregoing rights.