The Due Process Clauses of the 5th and 14th Amensments

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

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The Due Process Clause of § 1 of the 14th Amendment provides, "No State shall deprive any person of life, liberty, or property, without due process of law." This language mirrors the Due Process Clause in the Fifth Amendment, which provides "nor shall any person . . . be deprived of life, liberty, or property, without due process of law." It was commonly understood at the time of the ratification of the original Constitution in 1789 and the Fifth Amendment in 1791, as well as at the time of ratification of the 14th Amendment in 1868, that "due process" referred to the settled usages and modes of proceeding existing in the common and statute law of England, not shown unsuited to conditions in this country.1 Due process, thus, usually referred to proper procedures. Only occasionally was due process thought to have a substantive component.2

Despite this fact, subsequent to ratification of the 14th Amendment, the Court has provided individuals with a number of substantive protections against state or federal infringement through use of the Due Process Clause. As discussed at § 25.3 nn.55-64, the original intent of the framers and ratifiers of the 14th Amendment probably was to provide for such substantive immunities through the Privileges or Immunities Clause of the 14th Amendment. However, the Court gave the Privileges or Immunities Clause a very narrow interpretation in the Slaughter-House Cases in 1873. Since 1876, the Court has provided this kind of substantive protection through the doctrine known as "substantive due process."

An introduction to "substantive due process" doctrine is discussed at § 27.1. The main consequence of this doctrine is that all "persons" are granted rights under the Due Process Clause, while if the doctrine had been developed under the Privileges or Immunities Clause, the text of that Clause would have limited the rights to "citizens." This doctrine of substantive due process has two parts: "enumerated" rights and "unenumerated" rights.

"Enumerated" rights under substantive due process doctrine include those rights that are "fundamental" based on the text, context, and history of "life, liberty, and property" in the Due Process Clause, as well as rights based on the text, context, and history of "life, liberty, and property" that are not viewed by the Court as "fundamental." The basic definition of fundamental rights is discussed at § 27.1.1. The doctrine regarding non-fundamental rights is discussed at § 27.1.2. In addition, "enumerated rights" include those aspects of the Bill of Rights that are sufficiently "fundamental" to be incorporated into the Due Process Clause of the 14th Amendment, and thus made applicable against the states. These rights are discussed at § 27.2. The second part of substantive due process doctrine involves "unenumerated" fundamental rights that form part of substantive due process analysis. These rights, which the Court has held are "implicit in the concept of ordered liberty," although not textually specific in the Constitution, are discussed at § 27.3.

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The final aspect of due process analysis focuses on the original primary meaning of due process as referring to proper procedures that must be followed in order to deprive some person of "life, liberty, or property." This "procedural due process" doctrine is discussed at § 27.4.

§ 27 1 Introduction to Substantive Due Process Doctrine

Individuals are assured a number of substantive and procedural protections against governmental action by the first eight of the ten Amendments that comprise the Bill of Rights. Although all but the First Amendment speak in general terms, rather than being limited to restrictions on Congress, as is the First Amendment, the Court held in 1833 in Barron v. Baltimore,3 discussed at § 27.2.1 n.95, that the Bill of Rights restrains only the federal government. The Civil War Amendments - the 13th, 14th, and 15th Amendments, ratified between 1865 and 1870 - added protections for individuals against actions by state governments. In those amendments, there was no explicit reference to any one of the specific protections contained in the first eight Amendments, other than restating the Due Process Clause language of the Fifth Amendment in the 14th Amendment.

Since 1876, however, in Munn v. Illinois,4 discussed at § nn.142-43, the Court has interpreted the Due Process Clauses of the Fifth and 14th Amendments to provide for a number of substantive protections for individuals against both federal and state action. As a result, today's legal picture cannot be encompassed merely by consulting constitutional text. It has resulted from a series of gradual transformations in what "due process" has been taken to mean. These transformations have mirrored differences in the interpretive predispositions of the various styles of decisionmaking that have predominated on the Court in succeeding eras. As part of an introduction to these transformations, it is important to distinguish between those rights that are deemed "fundamental," to which some form of heightened scrutiny may apply, and those rights that are not "fundamental," to which some form of rational review applies.

§ 27 1.1 Introduction to Fundamental Rights Doctrine

A major issue in deciding what kind of protection the Due Process Clause provides regarding substantive rights for individuals concerns whether the particular right is "fundamental." Finding that a right is fundamental has two major consequences. First, those protections of the Bill of Rights that are deemed fundamental are held to be incorporated into the Due Process Clause of the 14th Amendment, and thereby made applicable against the states, discussed at §§ 27.2.1- Second, whether or not the fundamental right is part of the Bill of Rights, the Court typically applies a greater than minimum rational review analysis to determine the constitutionality of government action burdening that right, particularly where a substantial or undue burden exists on that right. This can occur under an "enumerated" fundamental rights analysis, as for the "freedom from bodily restraint," which includes the right to have the "beyond a reasonable doubt" standard applied in criminal cases, discussed at §, or an "unenumerated" fundamental rights analysis under the Equal Protection Clause, discussed at § 26.5, or under the Due Process Clause, discussed at § 27.3.

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In addition to the textually specific fundamental rights, discussed at §, like the...

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