The Due Process Clause

. . . nor shall any State deprive any person of life, liberty, or property, without due process of law. . . .

—Nathan S. Chapman & Michael W. McConnell

Introduction

The members of the 39th Congress who passed the Fourteenth Amendment would have been astonished by the diversity of constitutional doctrines the Supreme Court has fashioned out of the Due Process Clause. By its terms, the Due Process Clause simply prohibits the states from “depriv[ing] any person of life, liberty, or property without due process of law.” This provision guarantees that the government will act according to law and not arbitrary diktat, yet no provision of the Constitution has been the source of more disparate—or more controversial—Supreme Court decisions. The clause has been the source of doctrines that include “procedural due process” guarantees of notice, a hearing, and standards of proof; “substantive due process” rights to contract, abortion, and marriage; state jurisdictional limits; “incorporation” of the Bill of Rights against the states; and rules governing civil litigation, such as personal jurisdiction and choice of law.

History Before 1791

Magna Carta (1215) required that a freeman may be “taken, imprisoned, disseised, outlawed, banished, or in any way destroyed” only “by the lawful judgment of his peers [and/or] by the law of the land.”¹ By the seventeenth century, English jurists equated “due process of law” with this requirement. In English constitutionalism, due process operated principally as a limit on the Crown’s authority to deprive persons of rights without the application of law by a tribunal that was at least quasi-independent. In many cases, due process required a jury.² Almost all of the original American state constitutions included similar “law of the land” provisions, and some states separately guaranteed “due process of law.”³ The Fifth Amendment, ratified in 1791, guaranteed that the federal government would not “deprive[]” a person of “life, liberty, or property, without due process of law,” but that provision did not limit the power of the states.

Antebellum Precedent

Throughout the antebellum era, state and federal courts treated the due process clauses synonymously with law of the land clauses.⁴ American constitutional innovations gave courts greater independence and denied legislatures many of the judicial powers traditionally exercised by Parliament. Due process of law guaranteed that the government could deprive someone of a right to life, liberty, or property only pursuant to standing law and traditional procedures. Moreover, those rights could ordinarily be denied only by an independent tribunal applying that law according to those procedures.⁵

American courts also held that due process was a limit on the legislature in two kinds of cases. First, the legislature could not authorize judicial procedures that did not meet the traditional level of protections for litigants. Second, due process restricted the legislature’s power to act like a court by effectively entering judgment against a particular party. Parliament had long exercised the power to enact special bills that operated like judicial decisions. Sir William Blackstone observed that such bills deprived specific parties of rights based on past conduct that may or may not have violated a previously enacted law.⁶ American constitutions deprived legislatures of this power.

Blackstone’s short treatise on the natural rights of individuals provided antebellum jurists with a comprehensive account of “life, liberty, and property.”⁷ The meaning of life was literal: “[I]t begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.”⁸ Per Magna Carta, the government could not put someone to death without due process of law.

Liberty was a natural right. John Locke wrote that people were born with that “perfect freedom” to “order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature.”⁹ As part of the social compact, Blackstone wrote, the government could restrain liberty, but only “by due process of law,” which meant with standing law and according to established procedural protections such as the writ of habeas corpus and trial by jury.¹⁰ The liberty protected by due process was thus capacious. It included both fundamental rights like the freedom of religion and trivial rights like the freedom to wear a hat. All of these rights could be limited by the government, but only with due process of law.

The right of property was somewhat different. All people had a natural right to acquire, use, and dispose of property. However, the contours of each species of property were defined by positive law. The natural right to acquire, use, and dispose of such property was subject to generally applicable law. In Blackstone’s words, the right amounted to “the free use, enjoyment, and disposal of all . . . acquisitions, without any control or diminution, save only by the laws of the land.”¹¹ The assumption was that the government may define the general boundaries of private property, but it may deprive someone of a “vested” or settled property interest only with due process of law.

Antebellum courts decided a number of cases that tested the limits of this logic. One set of cases involved special bills. Courts concluded that due process of law prohibited legislatures from effectively targeting a specific person or group of persons for deprivation of contract or property rights, but these courts nearly always upheld generally applicable laws that operated only prospectively and that disinterested tribunals (typically judges or juries) could apply later to individual cases.

The glaring exceptions were a brace of laws from the 1850s that prohibited the sale of alcohol. Some courts found that these laws violated due process by effectively eliminating a species of property. Three other state courts, however, quickly came to the opposite, traditional conclusion.¹² These decisions were the backdrop to the notorious decision in Dred Scott v. Sandford (1857).¹³ Slavery was contrary to the enslaved person’s natural liberty. The Somerset Case (1772) held that slavery was unlike other forms of property, and the common law tolerated slavery only where it was affirmatively supported by positive law.¹⁴ Contrary to that norm, Dred Scott held that Congress lacked the power to prohibit slavery in the U.S. territories. Chief Justice Roger B. Taney’s majority decision further held that a slaveholder could not be deprived of his property right simply by taking an enslaved person into a free territory.¹⁵

The alcohol cases and Dred Scott were aberrations. It was common then as now for states to regulate the possession, use, or sale of property for the public good.

Framing the Fourteenth Amendment

The Fourteenth Amendment’s Due Process Clause generated little discussion in the 39th Congress. This lack of controversy was not surprising. The Fourteenth Amendment did no more than apply to the states a protection that had long applied to the federal government through the Fifth Amendment. (See Essay No. 172.) Asked what due process required, the amendment’s chief sponsor, Representative John Bingham of Ohio, replied that “the courts have settled that long ago, and the gentleman can go and read their decisions.”¹⁶ No one disputed this.

What was the understanding of due process of law that had been settled by the courts? In 1871, Representative James Garfield, who had been a member of the 39th Congress, explained that the Due Process Clause “realizes the full force and effect of the clause in Magna Charta, from which it was borrowed.” Garfield added that “there is now no power in either the State or the national Government to deprive any person of . . . [l]ife, liberty and property, except by due process of law; that is, by an impartial trial according to the laws of the land.”¹⁷

Garfield’s summary raises several questions. What exactly was the relationship between the Magna Carta’s “law of the land” provision and due process of law? What was the requirement of “an impartial trial according to the laws of the land”? And what were the rights of “life, liberty, and property” protected by due process of law? Senator Lyman Trumbull of Illinois, also a key supporter of the Fourteenth Amendment, defined the “liberty” protected by the U.S. Constitution as natural liberty, or the “[p]ower of acting as one thinks fit, without any restraint or control,” “so far restrained by human laws and no further, as is necessary and expedient for the general advantage of the public.”¹⁸

It is highly unlikely that the reasoning of the hated Dred Scott case was carried over into the 39th Congress’s understanding of due process under the Fourteenth Amendment. The Republicans of the 39th Congress were aiming to undo the effects of Dred Scott, not to sustain them.¹⁹

Scholarly Debates About the Due Process Clause

Scholars disagree about many aspects of the Due Process Clause’s original meaning. First, does due process apply in any way to the legislative branch? Some scholars point to historical evidence showing that due process of law referred strictly to the procedures of common-law courts. In England, Parliament frequently passed laws depriving individuals of life, liberty, or property.²⁰ However, this is not the mainstream view. The leading antebellum due process case, Murray’s Lessee (1856), involved the constitutionality of a statute.²¹

Second, does due process of law prohibit retroactive or targeted laws that deprive persons of rights? If so, that reading would render several provisions of Article I, Section 9—such as the Bill of Attainder Clause, the Ex Post Facto Clause, and the Contracts Clause—redundant.²² (See Essay Nos. 80, 81, and 82.) The Due Process Clause, enacted after Article I, was broader than any one of those provisions, and to the extent that it overlapped with them, antebellum American courts embraced the redundancy of constitutional protection for life, liberty, and property from arbitrary deprivation.²³

Third, do the antebellum cases applying due process to the legislature provide support for at least some version of modern “substantive due process”?²⁴ In our view, the answer is no. Some of these cases adapted the established procedural understanding of due process for the American system of separated powers. Other cases were out of step with the general course of jurisprudence.

Fourth, does due process incorporate natural law limits on legislation? Such limits were forerunners of modern substantive due process rights.²⁵ American jurists, including Representative Bingham, sometimes connected the requirement of “due process of law” or the “law of the land” with principles of divine or natural law.²⁶ However, they believed that those rights were embedded in the basic principles of the common law that protected rights of property, personal security, contract, and freedom of movement. Antebellum courts and commentators occasionally did opine that positive law had to comply with general principles, natural right, or an abstract notion of “reason,”²⁷ but the closest they came to enforcing these common-law norms was to read a loosely phrased statute narrowly to avoid violating them.²⁸

Fifth, does due process include the right to judicial review of whether a state legislature acted in good faith in exercising the state’s police power?²⁹ Under this view, the clause requires courts to review whether the legislature exercised its power in a good-faith attempt to achieve a constitutionally permissible end.

Sixth, is the text of the Due Process Clause sufficiently broad to include the evolving standards of justice and fairness that undergird modern substantive due process?³⁰ This argument adopts a remarkably expansive view of discretionary judicial authority over democratically enacted law. Moreover, it conflicts with the predominant understanding of the Fourteenth Amendment’s framers and ratifiers. They sought to ensure that states would provide the same structural and procedural protections to black Americans that white Americans had enjoyed under state and federal due process and law of the land provisions.³¹ The notion that courts had the authority to declare unconstitutional a state statute for failing a highly subjective means–ends test or for infringing on unenumerated fundamental rights was a product of judicial creativity several decades after the Fourteenth Amendment.

Modern Procedural Due Process Doctrine

The modern doctrines that most directly continue the antebellum understanding of due process are called “procedural due process.” Carey v. Piphus (1978) observed that “[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”³² The U.S. Supreme Court has recognized that the bedrock requirements of procedural due process are “notice and [an] opportunity for a hearing appropriate to the nature of the case.”³³ Due process may require different procedures for criminal, administrative, and civil cases. For instance, due process permits a criminal conviction only upon a showing of guilt “beyond a reasonable doubt,” but it will permit a judgment of civil liability upon the lesser showing of a “preponderance of the evidence.”³⁴

Traditional courts determined what process is due based on long-established procedures. Modern courts employ a balancing test based on the courts’ own intuitions about the importance of the interests and the reliability of the procedures. The Court has spoken of “property interests” and “liberty interests” instead of “rights.” Matthews v. Eldridge (1976) crafted a three-part balancing test based on (i) the individual’s interest in the property; (ii) the risk that the government’s proposed procedures would result in error and the probable value of additional procedural protections; and (iii) the costs to the government of additional process.³⁵ The outcome of this balancing in any particular case is difficult to predict. Often, no more is needed than notice and an opportunity to be heard with no requirement of a disinterested tribunal.

However, certain constitutionally grounded rights require more process. For example, when the state deprives a person of liberty through physical restraint, the government ordinarily must comply with constitutionally specified procedures that include a reasonable seizure and a jury trial with habeas corpus as a backstop. Hamdi v. Rumsfeld (2004) departed from this principle by holding that detainees held at the military facility in Guantanamo Bay, Cuba, required only the notice and hearing requirements usually applicable to civil cases involving welfare benefits.³⁶ Justice Antonin Scalia dissented and would have afforded American citizens held in custody the full protections of the Due Process Clause. Takings of property under the Fifth Amendment require a jury trial to determine just compensation. For deprivations of so-called “new” property, such as welfare benefits, the process varies with context.³⁷

Due process also ensures fair notice and procedural protections in a variety of special contexts. A state must comply with the Due Process Clause when it assesses, gives notice, and collects taxes with special taxes typically subject to more procedural protections and general taxes typically subject to fewer such protections.³⁸ The clause applies to the deprivation of parental rights.³⁹ The government also must comply with due process before involuntarily committing a person for mental health problems.⁴⁰ Due process limits the exercise of state judicial power over defendants who have insufficient contacts with the state.⁴¹ Due process protects defendants from liability for violating overly “vague” laws that do not provide sufficient notice of their coverage.⁴² All of these “procedural due process” doctrines protect persons from mistaken deprivations of rights or from deprivations of rights without adequate notice.

The Incorporation Doctrine

Under the “incorporation” doctrine, the Supreme Court has applied most provisions of the Bill of Rights to the states through the Due Process Clause. This doctrine is premised on so-called substantive due process. The Court has held that certain rights are protected from any deprivation whatsoever, regardless of how much notice or how many procedural protections the state may provide.

The first eight amendments were originally understood to restrict the federal government, not the states.⁴³ In our view, the framers of the Fourteenth Amendment meant to protect the civil rights of black Americans against the states, and at least some of those rights overlapped with the rights enumerated in the first eight amendments. The questions are: Which provision of the Fourteenth Amendment was understood to do so, and how far was it understood to go? Many scholars contend that the Privileges or Immunities Clause was the most likely source of those rights.⁴⁴ (See Essay No. 140.) By prohibiting any state from “abridg[ing] the privileges or immunities of citizens of the United States,” the clause seems to provide more absolute protection for substantive rights of speech and religious liberty and against unconstitutional forms of punishment. However, the Slaughter-House Cases (1873), the Supreme Court’s first Fourteenth Amendment decision, read the Privileges or Immunities Clause narrowly to exclude the protections of the Bill of Rights.⁴⁵

In the late nineteenth and early twentieth centuries, the Court repeatedly held that the Fourteenth Amendment does not apply those rights to the states,⁴⁶ but the Court gradually changed direction. In a series of cases over the course of the twentieth century, the Court held that the Due Process Clause “incorporates” almost all of the individual rights provisions of the first eight amendments against the states. The only exceptions at present are the Fifth Amendment right to a grand jury indictment in criminal cases; the Seventh Amendment right to jury trial in civil cases; and the Third Amendment right against the quartering of troops, which the Court has never interpreted.

One reason the doctrine developed in fits and starts is that the justices have never agreed either on its rationale or on how far it goes. Some justices have written that the clause incorporates only those rights that are “implicit in the concept of ordered liberty.”⁴⁷ Others have concluded that the Due Process Clause incorporates all of the individual rights enumerated in the first eight amendments.⁴⁸ The idea of incorporation through the Due Process Clause does not square with the original meaning of due process, yet the Supreme Court has shown little interest either in abandoning the doctrine or in relocating it under the Privileges or Immunities Clause.⁴⁹

Fundamental Rights

The Supreme Court has recognized a second kind of substantive due process. Under the “fundamental rights” doctrine, the Court has announced certain unenumerated fundamental rights that cannot be violated regardless of how much process is provided. This doctrine allows judges to infer rights not necessarily grounded in law and render them impervious to government restraint even with due process.⁵⁰ These rights are known as unenumerated rights.

Cases from the 1870s rejected the contention that the Due Process Clause protects unenumerated rights,⁵¹ but the Court changed course by the end of the nineteenth century. This approach was first prompted by Justice Joseph P. Bradley’s dissent in the Slaughter-House Cases. Over time, the courts held that the Due Process Clause protects the liberty of contract. This right required states to show that laws burdening the sale of goods, services, and employment were “reasonable.”⁵² The paradigmatic decision was Lochner v. New York (1905), which declared unconstitutional a limit on the number of hours bakers could work.⁵³ During the so-called Lochner era, the Court invalidated a number of state economic regulations, primarily laws interfering with the rights of employers and employees to contract for labor.

After much political controversy, the New Deal Court largely abandoned the doctrine.⁵⁴ Today, challengers of a state economic regulation must show that it is a wholly unreasonable way to achieve any legitimate state interest.⁵⁵ Most contemporary jurists and scholars believe that the economic version of substantive due process was inconsistent with the original understanding of the clause.⁵⁶

Two notable Lochner-era substantive due process cases have survived. Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923) held that parents, children, and teachers have freedom from state interference in matters of primary and secondary education.⁵⁷ The modern Court has interpreted those cases as progenitors of First Amendment rights of religion, speech, and association.⁵⁸ The Court has also seen these cases as forerunners of a broader right of familial autonomy. Griswold v. Connecticut (1965) found a right to contraception.⁵⁹ Loving v. Virginia (1967) and Obergefell v. Hodges (2015) recognized a fundamental right to marry.⁶⁰ Lawrence v. Texas (2003) protected a right to engage in consensual, adult, same-sex intimacy.⁶¹

The Rehnquist and Roberts Courts, however, have generally backed away from recognizing unenumerated rights of “substantive due process” that are not grounded in long-standing tradition. Washington v. Glucksberg (1997) rejected a right to physician-assisted suicide.⁶² Dobbs v. Jackson Women’s Health Organization (2022) overruled a right to abortion.⁶³ If the past is any indication, the future of substantive due process, or whatever other label the Court applies to unenumerated rights, will be unpredictable and politically contentious.

1. Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1682 (2012). ↩︎
2. Id. at 1683, 1692. ↩︎
3. Id. at 1705. ↩︎
4. James W. Ely, Jr., The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Comment. 315, 328 (1999). ↩︎
5. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856). ↩︎
6. Chapman & McConnell, supra at 1729–30. ↩︎
7. 1 Blackstone 141. ↩︎
8. Id. at 129. ↩︎
9. John Locke, Second Treatise of Government ch. 1, § 4 (1689). ↩︎
10. Id. at 135–37. ↩︎
11. Id. at 138. ↩︎
12. Chapman & McConnell, supra at 1769. ↩︎
13. 60 U.S. (19 How.) 393 (1857). ↩︎
14. Somerset v. Stewart, (1772) 98 Eng. Rep. 499 (K.B.). ↩︎
15. 60 U.S. (19 How.) at 450. ↩︎
16. Cong. Globe, 39th Cong., 1st Sess. 1089 (1866). ↩︎
17. Cong. Globe, 42d Cong., 1st Sess. app. at 153 (1871); Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 175 (1868). ↩︎
18. 2 RA 69. ↩︎
19. Chapman & McConnell, supra at 1772. ↩︎
20. In re Winship, 397 U.S. 358, 278–82 (1970) (Black, J., dissenting); Max Crema & Lawrence B. Solum, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. 447 (2022). ↩︎
21. 59 U.S. (18 How.) 272 (1856). ↩︎
22. John Harrison, Substantive Due Process and the Constitutional Text, 83 Va. L. Rev. 493, 520–24 (1997). ↩︎
23. Chapman & McConnell, supra at 1718. ↩︎
24. Chester Antieau, The Intended Significance of the Fourteenth Amendment 351–55 (1997); Ely, supra; Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale L.J. 408, 411–12 (2010). ↩︎
25. Frederick Mark Geddicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585 (2009). ↩︎
26. Cong. Globe 39th Cong., 1st Sess. 1094 (1866). ↩︎
27. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388–89 (1798) (Chase, J.). ↩︎
28. Stuart Banner, The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped (2021). ↩︎
29. Randy E. Barnett & Evan D. Bernick, No Arbitrary Power: An Originalist Theory of the Due Process of Law, 60 Wm. & Mary L. Rev. 1599, 1631–32 (2019). ↩︎
30. Jack M. Balkin, Living Originalism (2014). ↩︎
31. Chapman & McConnell, supra at 1778. ↩︎
32. 435 U.S. 247, 259 (1978). ↩︎
33. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). ↩︎
34. Rivera v. Minnich, 483 U.S. 574, 577–78 (1986). ↩︎
35. 424 U.S. 319 (1976). ↩︎
36. 542 U.S. 507, 535 (2004). ↩︎
37. Goldberg v. Kelly, 397 U.S. 254 (1970). ↩︎
38. Glidden v. Harrington, 189 U.S. 255 (1903); Turpin v. Lemon, 187 U.S. 51, 58 (1902). ↩︎
39. Santosky v. Kramer, 455 U.S. 745 (1982); Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981). ↩︎
40. Addington v. Texas, 441 U.S. 418 (1979); Parham v. J.R., 442 U.S. 584 (1979). ↩︎
41. Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945). ↩︎
42. FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012). ↩︎
43. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). ↩︎
44. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Randy E. Barnett & Evan D. Bernick, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, 95 Notre Dame L. Rev. 499 (2019); Michael Kent Curtis, Resurrecting the Privileges or Immunities Clause and Revising the Slaughter-House Cases Without Exhuming Lochner: Individual Rights and the Fourteenth Amendment, 38 B.C. L. Rev. 1 (1996); Kurt T. Lash, The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick, 95 Notre Dame L. Rev. 591 (2019). ↩︎
45. 83 U.S. 36 (1873). ↩︎
46. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). ↩︎
47. Palko v. Connecticut, 302 U.S. 319, 325 (1937). ↩︎
48. Adamson v. California, 332 U.S. 46, 71–72 (1947) (Black, J., dissenting). ↩︎
49. McDonald v. City of Chicago, 561 U.S. 742 (2010); id. (Thomas, J., concurring). ↩︎
50. Lawrence v. Texas, 539 U.S. 558 (2003). ↩︎
51. Davidson v. New Orleans, 96 U.S. 97 (1878); Munn v. Illinois, 94 U.S. 113 (1876); Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). ↩︎
52. Allgeyer v. Louisiana, 165 U.S. 578 (1897). ↩︎
53. 198 U.S. 45 (1905). ↩︎
54. W. Coast Hotel v. Parrish, 300 U.S. 379 (1937). ↩︎
55. Ferguson v. Skrupa, 372 U.S. 726 (1963). ↩︎
56. David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2012). ↩︎
57. 268 U.S. 510 (1925); 262 U.S. 390 (1923). ↩︎
58. Wisconsin v. Yoder, 406 U.S. 205 (1972). ↩︎
59. 381 U.S. 479 (1965). ↩︎
60. 388 U.S. 1 (1967); 576 U.S. 644 (2015). ↩︎
61. 539 U.S. 558 (2003). ↩︎
62. 521 U.S. 702 (1997). ↩︎
63. 597 U.S. 215 (2022). ↩︎