The Due Process Clause

. . . nor [shall any person] be deprived of life, liberty, or property, without due process of law . . .

—Gary S. Lawson

Introduction

The Due Process of Law Clauses in the Fifth and Fourteenth Amendments have emerged as sources of many “hot-button” constitutional cases. That would have surprised Founding-era drafters and ratifiers of the Fifth Amendment. The clause was a technical provision that added little to the constraints on executive and judicial power implicit in those functions in the Constitution of 1788. The U.S. Supreme Court did not decide a case involving the meaning of “due process of law” until 1856. Over the past 150 years, however, the Fifth Amendment’s Due Process of Law Clause has become a key source of procedural limits on federal, executive, and judicial action.

History Before 1789

Article 39 of Magna Carta (1215) proclaimed that “no free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.” This “law of the land” requirement is sometimes known as the principle of legality. The article imposed limits on the powers of the king and his agents, including judges, who were considered executive agents. These government officials could not take unilateral, arbitrary action against certain protected private interests. Executive deprivations of such interests could take place only pursuant to valid legal authority. This principle of legality remained a bedrock of Anglo-American law for centuries.

The specific phrase “due process of law” made its first appearance in a 1354 statute concerning court procedures.¹ “Due process of law” at that time narrowly meant that judgments could issue only when the defendant was personally given the opportunity to appear in court pursuant to an appropriate writ. Specifically, the defendant was served, or provided with the process that was due under the law. The phrase retained this technical meaning in English law through the colonial era.²

In 1642, Sir Edward Coke discussed the Law of the Land in his Institutes of the Lawes of England. Coke observed that under Article 29, a person could not be “dispossessed of his free-hold (that is) lands, or livelihood, or of his liberties . . . as belong to him by his free birth-right, unlesse it be by the lawfull judgement, that is, verdict of his equals (that is, of men of his own condition) or by the Law of the Land (that is, to speak it once for all) by the due course, and processe of Law.”³

After independence, the majority of state constitutions contained clauses that restrained the government from depriving persons of protected interests except pursuant to “the law of the land.”⁴ For example, the New York constitution of 1777 provided that “no member of this State shall be disenfranchised, or deprived of any of the rights or privileges secured to the subjects of this State by this constitution, unless by the law of the land, or the judgment of his peers.”⁵ The Massachusetts constitution of 1780 similarly declared that “no subject shall be . . . deprived of his life, liberty, or estate; but by the judgment of his peers, or the law of the land.”⁶ Other charters included the phrase “due course of law” (describing the procedures employed by the law once process was properly served) and “law of the land” (describing the source and content of legal norms).⁷

In February 1787, Alexander Hamilton discussed the Law of the Land Clause in remarks to the New York Assembly.⁸ Citing Coke, he explained that law of the land “mean[s] presentment and indictment, and process of outlawry, as contradistinguished from trial by jury.”⁹

Adoption of the Fifth Amendment

The federal Constitution did not include a law of the land clause, but the Supremacy Clause in Article VI did provide that certain types of federal law were the “supreme Law of the Land.” The absence of a law of the land clause was not a subject of meaningful discussion during the ratification debates. The Minority of the Convention of Pennsylvania, however, proposed such an amendment to the federal Constitution that mirrored language from the Pennsylvania state constitution: “no man be deprived of his liberty, except by the law of the land or the judgment of his peers.”¹⁰

In 1789, the First Congress proposed what would become the Due Process Clause.11 The proposal tracked the form of the state constitutions but used “due process of law” instead of “law of the land.” The reasons for this difference are uncertain. Professor Ryan Williams has observed that the drafting and ratification history of the Fifth Amendment’s Due Process of Law Clause is “notoriously sparse,”¹¹ and “[t]here was no commentary or debate about the text that became the Fifth Amendment Due Process Clause.”¹² Nonetheless, “due process of law” was distinct from both “due course of law” and “law of the land.”¹³ Founding-era figures and state court judges often referred to limits on arbitrary executive, judicial, or legislative power, but it is very difficult to tie those discussions to the specific language found in the Fifth Amendment rather than to these broader concepts of due course of law or the law of the land.

Original Meaning of the Due Process Clause

The Fifth Amendment was ratified without any meaningful debate or controversy. It is extremely unlikely that this provision was the source of foundational principles of governmental action. Professors Nathan Chapman and Michael McConnell explain that when “the Fifth Amendment was enacted, everyone agreed . . . that the executive could not deprive anyone of a right except as authorized by law.”¹⁴

Consider a hypothetical: Before ratification of the Fifth Amendment, could the President arbitrarily and without legal authorization seize persons or property, and could federal courts conduct secret ex parte trials without notice? There is no evidence that this was the general understanding of the federal government’s powers. Instead, basic norms of procedure and separation of powers were implicit in the concepts of “executive Power” and “judicial Power.”¹⁵ As with most of the Bill of Rights, the Due Process of Law Clause clarified understandings that were already built into the Constitution’s enumerations of institutional powers. For example, courts at the time grounded a notice requirement in “general law” without mentioning the Fifth Amendment.¹⁶

To the extent that the Fifth Amendment’s text rather than background principles of executive and judicial power is a source of rights, due process of law applies only to deprivations of “life, liberty, or property.” In 1791, the meaning of “liberty” as a personal right was clear. Sir William Blackstone wrote that the right to liberty meant “the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.”¹⁷ That definition is quite narrow and focused on freedom of movement. Liberty did not include such interests as bodily integrity or reputation; they were encompassed by Blackstone’s definition of “life,” which referred not merely to an execution, but to an array of rights lumped together under the general heading of personal security: “a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.”¹⁸

The term “property” was more ambiguous. It could have referred to land, land plus chattels, or anything of exchangeable value. Perhaps the best definition was whatever interests a court would have recognized as property. None of these understandings would include government benefits. The law sharply distinguished between property rights and privileges that the government could continue or terminate at its pleasure.¹⁹

Early Commentary and Precedent

Justice Joseph Story in his Commentaries equated due process of law with the law of the land, relying on Coke’s Institutes. However, Story expanded Coke’s account beyond initiation of actions to include “the processes and proceedings of the common law.”²⁰ A quarter-century later, Murray’s Lessee v. Hoboken Land & Improvement Co. (1856) was the Supreme Court’s first case construing “due process of law.”²¹ The Court essentially adopted and extended Story’s broader account of the phrase. The Due Process Clause was read as “a restraint on the legislative as well as on the executive and judicial powers of the government.”²² Moreover, this provision codified “those settled usages and modes of proceeding existing in the common and statute law of England.”²³ The lines among due process of law, due course of law, and law of the land were blurred—and that conflation continues to this day.

In 1868, the Fourteenth Amendment added a due process of law clause applicable to the states almost identical to the Fifth Amendment clause applicable to the federal government. (See Essay No. 172.) It is not obvious that the two clauses, enacted in different contexts eighty years apart, would necessarily have the same meaning. In 1901, the Supreme Court raised the possibility of different meanings.²⁴ Since then, however, courts have treated the two clauses as having the same meaning.

The Fourteenth Amendment’s Due Process of Law Clause was treated originally as a source of procedural restraints on state administrative action but was not confined to that context.²⁵ When the executive and judicial branches deprive people of life, liberty, and property, they must employ fair procedures. Moreover, legislatures cannot create novel forms of adjudication that depart too far from traditional models. Some of these results follow from the unamended text of the 1788 Constitution and the essential meaning of executive or judicial power, but locating them in the Fifth Amendment and conforming that meaning to the interpretation of the Fourteenth Amendment has resulted in a complex doctrinal structure that does not necessarily track original meaning.

Modern Understandings of Life, Liberty, and Property

The modern understanding of “life, liberty, or property” has changed dramatically since 1791. Each term now means something different from the Blackstonian understanding of the Founding era. “Life” has been narrowed to include only governmental killings rather than the full range of Blackstonian interests such as physical integrity and reputation. This change has happened by default rather than by express decision. Because some of those interests are obviously among the clause’s concerns, this narrowing of “life” has led to some expansion of “liberty” and “property.”

In Meyer v. Nebraska (1923), the Supreme Court understood the concept of “liberty” as “not merely freedom from bodily restraint.” Rather, it embraced “the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.”²⁶

The Court’s expansion of the concept of “liberty” reached its apogee in Planned Parenthood v. Casey (1992). Three justices declared that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”²⁷ Casey, however, was overruled by Dobbs v. Jackson Women’s Health Org. (2022).²⁸ The precise contours of the Court’s conception of “liberty” remain unsettled. They include, for example, freedom from corporal punishment in schools.²⁹ But liberty does not include a right to have non-citizen spouses admitted to the country.³⁰ Special, more restrictive doctrines apply to ascertaining whether prison conditions implicate liberty interests.³¹

Board of Regents of State Colleges v. Roth (1972) ruled that “property” would not be construed in accordance with its original meaning.³² Rather, the meaning of “property” would include an extended range of interests, including government benefits, that are recognized in prior case law. Specifically, such “entitlements” are constructed through statutes and regulations that specify a clear causal connection between satisfaction of criteria for eligibility and receipt of a benefit. Legislatures can thus control to some extent whether benefits count as entitlements by giving executive agents more or less discretion in their administration. Administrators can also exercise control through their crafting of regulations. Some interests, however, such as an equity interest in a home, count as “property” regardless of legislative or regulatory specifications.³³

Procedural Due Process

What process is due before the government deprives a person of life, liberty, or property? Mathews v. Eldridge (1976) clarified that this “delicate process of judgment” generally requires consideration of several factors.³⁴ The Court (1) looks to the significance of the “private interest that will be affected by the official action;” (2) balances 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 (3) weighs the “Government’s interest” and the “burdens that the additional or substitute procedural requirement would entail.”³⁵ Subsequent case law treats this Mathews framework as the nearly exclusive vehicle for assessing procedural adequacy under the Due Process of Law Clause, though this is likely a misreading of the case.³⁶ A few areas, such as notice and criminal procedure, are analyzed outside this framework.³⁷

Limits on Due Process

There are several limits on application of the Due Process Clause. First, if an interest does not fall within the meaning of “life, liberty, or property,” the Due Process Clause does not mandate any particular procedures for its deprivation. Second, the clause applies only to government action. Private entities are not bound by the Fifth Amendment, although difficult questions can arise when the acting entity is nominally private but involved in some fashion with the government. Third, the word “deprived” in the Due Process Clause refers to an intentional or reckless taking of a protected interest. Losses inflicted by government negligence do not implicate the Due Process Clause.³⁸

Fourth—and most important—administrative agencies are responsible for the vast bulk of governmental actions that deprive people of their property, but large classes of agency action fall outside the clause’s protection. When agencies make rules and function like a legislature, they are immune from the Due Process Clause.³⁹ However, when agencies adjudicate cases on a case-by-case basis, they are subject to the Due Process Clause. However, agencies are not subject to the same rules as courts. Procedures that would obviously be inadequate in judicial proceedings are considered constitutionally adequate for agency adjudication.

Open Questions

• Which procedures (if any) must come before the government deprives people of protected interests? The law in this area remains unsettled. There is a presumption in favor of pre-deprivation procedures that can be overcome when the value of such procedures would be low, the potential risks to the government or public from delaying the deprivation would be high, and/or the person deprived would have an adequate remedy after the deprivation.
• What counts as “liberty” and “property” for purposes of the Due Process of Law Clause by force of the Constitution itself without regard to legislative or executive specification?
• When is the adequacy of procedures for deprivations judged by something other than the three-part Mathews framework?

1. 28 Edw. 3, ch. 3 (1354). ↩︎
2. Max Crema & Lawrence W. Solum, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. 447, 481–83 (2022). ↩︎
3. 2 The Selected Writings of Sir Edward Coke 849 (Steve Sheppard ed., 2003). ↩︎
4. Robert E. Riggs, Substantive Due Process in 1791, 1990 Wisc. L. Rev. 941, 973–74. ↩︎
5. N.Y. Const. of 1777, art. XIII. ↩︎
6. Mass. Const. of 1780, part I, art. XII. ↩︎
7. Crema & Solum, supra at 462. ↩︎
8. Alexander Hamilton, Remarks on an Act for Regulating Elections, New York Assembly (Feb. 6, 1787), https://perma.cc/ARH9-UJXR. ↩︎
9. Id. ↩︎
10. Storing 3.11.13. ↩︎
11. Ryan Williams, The One and Only Substantive Due Process Clause, 120 Yale L. J. 408, 445 (2010). ↩︎
12. Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1723 (2012). ↩︎
13. Crema & Solum, supra at 462. ↩︎
14. Chapman & McConnell, supra at 1679; Gary Lawson, Take the Fifth . . . Please! The Original Insignificance of the Fifth Amendment’s Due Process of Law Clause, 2017 BYU L. Rev. 611, 619–22 (2018). ↩︎
15. Lawson, supra at 626–37. ↩︎
16. Hollingsworth v Barbour, 29 U.S. (4 Pet.) 466, 472 (1830); Gary Lawson, A Truism with Attitude: The Tenth Amendment in Constitutional Context, 83 Notre Dame L. Rev. 469 (2008). ↩︎
17. 1 Blackstone 134. ↩︎
18. 1 Blackstone 129. ↩︎
19. Paul J. Larkin, Jr., The Original Understanding of “Property” in the Constitution, 100 Marq. L. Rev. 1 (2016). ↩︎
20. 3 Story’s Commentaries § 1783. ↩︎
21. 59 U.S. (18 How.) 272 (1856), ↩︎
22. Id. at 276. ↩︎
23. Id. at 277. ↩︎
24. French v. Barber Asphalt Paving Co., 181 U.S. 324, 328–29 (1901). ↩︎
25. Spencer v. Merchant, 125 U.S. 345, 356 (1888). ↩︎
26. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). ↩︎
27. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992). ↩︎
28. 597 U.S. 215 (2022). ↩︎
29. Ingraham v. Wright, 430 U.S. 651 (1977). ↩︎
30. Dep’t of State v. Munoz, 602 U.S. 899 (2024). ↩︎
31. Sandin v. Conner, 515 U.S. 472 (1995). ↩︎
32. 408 U.S. 564 (1972). ↩︎
33. Tyler v. Hennepin Cnty., Minn., 598 U.S. 631 (2023). ↩︎
34. 424 U.S. 319 (1976). ↩︎
35. Id. at 335. ↩︎
36. Gary Lawson, Katharine Ferguson & Guillermo Montero, “Oh Lord, Please Don’t Let Me Be Misunderstood!”: Rediscovering the Mathews v. Eldridge and Penn Central Frameworks, 81 Notre Dame L. Rev. 1, 15–19 (2005). ↩︎
37. Gary Lawson, Federal Administrative Law 985–86 (10th ed. 2025). ↩︎
38. Daniels v. Williams, 474 U.S. 327, 333 (1986). ↩︎
39. Bi-Metallic Inv. Co. v. State Bd. of Equalization of Colo., 239 U.S. 441 (1915). ↩︎