The Due Process Clause of the 14th Amendment prohibits state and local governments from depriving any person of life, liberty, or property without fair legal procedures, and it also shields certain fundamental personal liberties that no ordinary state law can override. Courts have split the clause into two working doctrines: procedural due process, which controls the steps government must follow before acting against you, and substantive due process, which identifies rights the government cannot invade regardless of the procedures it uses. Together they set the floor of fairness that every state, county, city, agency, and public official in the country has to meet.
What the Clause Says and Who It Binds
Section 1 of the 14th Amendment contains the operative language: no state shall “deprive any person of life, liberty, or property, without due process of law.”1Congress.gov. U.S. Constitution – Fourteenth Amendment The word “state” reaches every arm of state and local government, from governors and state agencies down to county clerks and public school boards. The Fifth Amendment imposes a nearly identical rule on the federal government, so the two clauses function as mirror images. When someone invokes due process against a state trooper, a zoning board, or a public university, this is the provision doing the work.
The word “person” rather than “citizen” was deliberate, and it matters for who can bring a claim. More on that below.
Procedural Due Process: Notice and a Hearing
Procedural due process is the more intuitive half of the doctrine. Before the government takes something from you, it has to follow fair steps. At minimum that almost always means two things: notice of what the government intends to do, and a chance to be heard by someone neutral before the decision becomes final. A city cannot demolish your building, revoke your professional license, or cut off your benefits without telling you why and giving you a chance to respond.
The Mathews v. Eldridge Balancing Test
How much process you are owed depends on the situation. Courts calibrate the answer using a three-factor test from the 1976 Supreme Court case Mathews v. Eldridge, which involved the termination of Social Security disability payments.2Constitution Annotated. Amdt14.S1.5.4.2 Due Process Test in Mathews v. Eldridge The test weighs:
- Your private interest, meaning what you stand to lose. Monthly income you depend on for rent carries more weight than a minor administrative privilege.
- The risk of an erroneous decision under the current procedures, and whether extra safeguards like a hearing would meaningfully reduce that risk.
- The government’s burden, in time, money, and administrative effort, of providing those extra safeguards.
Process is not one-size-fits-all. Someone facing eviction from public housing, where the loss could mean homelessness, will generally receive more protection than someone contesting a minor regulatory fine.
Hearing Before or After the Government Acts
The Mathews framework also resolves timing. When basic survival is at stake, the Supreme Court has required a hearing before the deprivation. In Goldberg v. Kelly (1970), the Court demanded a pre-termination hearing before welfare benefits could be cut off, because recipients were living at the margin of subsistence and losing payments without warning could mean a family cannot eat.2Constitution Annotated. Amdt14.S1.5.4.2 Due Process Test in Mathews v. Eldridge
When the stakes are lower or a pre-action hearing would be administratively costly, a hearing afterward can be enough. In Mathews itself, the Court found that a post-termination hearing was adequate for Social Security disability benefits because those benefits are not based on financial need and a recipient who lost them could apply for welfare in the interim. The principle is practical: the more devastating the action, the earlier in the process you are entitled to push back.
Substantive Due Process: Rights the Government Cannot Reach
Substantive due process is the harder half of the doctrine to pin down. Where procedural due process asks whether the government followed fair steps, substantive due process asks whether the government had any business acting at all. Some rights are so fundamental that ordinary legislation cannot override them no matter how much process accompanies the deprivation.
The Supreme Court has recognized a cluster of these fundamental rights over the past century, most of them tied to deeply personal decisions about how to live. They include the right to marry, to have children, to direct the upbringing and education of your children, to use contraception, and to maintain family integrity.3Constitution Annotated. Amdt14.S1.6.3.1 Overview of Noneconomic Substantive Due Process One of the earliest landmark cases, Meyer v. Nebraska (1923), struck down a state law banning the teaching of foreign languages to young children, holding that “liberty” under the 14th Amendment extends well beyond freedom from physical restraint and includes a parent’s right to control their child’s education.4Justia U.S. Supreme Court Center. Meyer v. Nebraska, 262 U.S. 390
In more recent decades the Court extended substantive due process to protect the right to engage in private, consensual intimate conduct (Lawrence v. Texas, 2003) and the right to same-sex marriage (Obergefell v. Hodges, 2015).3Constitution Annotated. Amdt14.S1.6.3.1 Overview of Noneconomic Substantive Due Process The common test for identifying such rights is whether the claimed liberty is “deeply rooted in this Nation’s history and tradition.”
What Dobbs Changed
The 2022 decision in Dobbs v. Jackson Women’s Health Organization overruled the constitutional right to abortion, which had been grounded in substantive due process. The majority emphasized that its holding concerned abortion specifically and stated that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”5Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 Justice Thomas, writing separately, urged the Court to reconsider its entire substantive due process framework, including the precedents protecting contraception, intimate conduct, and same-sex marriage.
Those other rights remain intact for now. But Dobbs reinforced a stricter version of the “deeply rooted in history” test that could make it harder to argue for new substantive due process protections going forward.
Why Classifying a Right as Fundamental Decides the Case
When someone challenges a law on due process or equal protection grounds, the court first decides how skeptically to examine the government’s justification. That decision usually decides the case.
- Rational basis review is the default. The government wins as long as the law is rationally connected to any legitimate purpose. Ordinary economic and social legislation is reviewed this way, and the government almost always prevails.6Legal Information Institute. Rational Basis Test
- Intermediate scrutiny requires the law to further an important government interest and be substantially related to achieving it. Gender-based classifications are one common example.7Legal Information Institute. Intermediate Scrutiny
- Strict scrutiny is the toughest standard. The government must prove the law serves a compelling interest and is narrowly tailored to achieve it. Courts apply it when a law burdens a fundamental right or targets a suspect classification like race, and laws rarely survive.8Congress.gov. Equal Protection: Strict Scrutiny of Racial Classifications
If a court treats the right at issue as fundamental, the challenged law faces strict scrutiny and almost certainly loses. If not, rational basis applies and the law almost certainly survives. The fight over which tier applies is often the entire case.
How the Bill of Rights Reaches State Governments
The Bill of Rights was originally written to restrain the federal government only. A state could theoretically restrict speech or conduct warrantless searches without violating the federal Constitution. The 14th Amendment changed that through what the Supreme Court calls selective incorporation: one by one, the Court has ruled that most protections in the Bill of Rights are fundamental enough to apply against state and local governments through the Due Process Clause.
The process started with Gitlow v. New York in 1925, where the Court assumed for the first time that the First Amendment’s free speech protections limited state governments.9Justia U.S. Supreme Court Center. Gitlow v. People of New York, 268 U.S. 652 Over the following century, the Court incorporated nearly all of the remaining protections, including the right against unreasonable searches, the right to counsel in criminal cases, and the right to bear arms. As recently as 2019, in Timbs v. Indiana, the Court incorporated the Eighth Amendment’s ban on excessive fines, holding that the protection is “deeply rooted in this Nation’s history and tradition” and therefore applies to the states.10Supreme Court of the United States. Timbs v. Indiana, 586 U.S. 17-1091 A handful of provisions remain unincorporated, most notably the Fifth Amendment’s grand jury requirement for serious federal criminal charges.11Legal Information Institute. Incorporation Doctrine
Who Counts as a “Person”
The Due Process Clause protects every “person” within a state’s jurisdiction, and that word was chosen deliberately over “citizen.”1Congress.gov. U.S. Constitution – Fourteenth Amendment The protections extend to anyone physically present in the United States regardless of citizenship or immigration status. A noncitizen cannot be jailed, fined, or have property seized without the same procedural protections that apply to a citizen.
Corporations and other legal entities also qualify as “persons” under the 14th Amendment. The Supreme Court declared as much in Santa Clara County v. Southern Pacific Railroad (1886), stating that the Equal Protection Clause applies to corporations without even requiring argument on the point.12Justia U.S. Supreme Court Center. Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 A business can therefore challenge a government fine, a license revocation, or a regulatory taking on due process grounds. Corporate personhood has limits, though. Corporations do not enjoy every right living people do; they have no Fifth Amendment privilege against self-incrimination, for example.
What the Clause Does Not Reach: Private Conduct
The 14th Amendment restricts government conduct only. A private employer who fires you without explanation, a landlord who evicts you unfairly, or a social media company that bans your account is not bound by the Due Process Clause. The constitutional obligation runs against state and local government actors: police officers, public school administrators, state licensing boards, municipal zoning commissions, and similar officials acting in their government capacity.
Courts have carved out narrow exceptions where private conduct can be treated as state action, using three overlapping tests.13Legal Information Institute. State Action Doctrine Under the public function test, a private party performing a task “traditionally exclusively reserved to the State,” like running a company town’s elections, must comply with constitutional standards. Under the entanglement or nexus test, the question is whether the government is so closely intertwined with the private party’s challenged action that the action should fairly be treated as the government’s own. Under the compulsion test, a private decision becomes state action when the government coerced or significantly encouraged it.
All three tests set a high bar. Being regulated by the government or receiving government funding does not turn a private business into a state actor. The connection has to be far more direct than that.
How You Enforce a Due Process Right
Knowing a right exists and actually enforcing it are two different problems. The primary tool for holding state and local officials accountable for due process violations is a federal statute, 42 U.S.C. § 1983, which allows any person deprived of a constitutional right by someone acting under the authority of state law to sue for damages or a court order stopping the violation.14Office of the Law Revision Counsel. 42 USC 1983 – Civil Action for Deprivation of Rights
A Section 1983 claim has two essential elements. First, the person who harmed you must have been acting under color of state law, meaning they used the power of a government position even if they abused or exceeded that authority. Second, their actions must have deprived you of a right secured by the Constitution or federal law. The statute does not create rights on its own. It provides the mechanism for enforcing rights that exist elsewhere, like the Due Process Clause.
A successful case can produce monetary damages for the harm suffered and injunctive relief ordering the government to stop the unconstitutional practice. If you prevail, the court has discretion to award reasonable attorney’s fees under 42 U.S.C. § 1988, which can make it financially feasible to bring cases that would otherwise be too expensive to pursue.15Office of the Law Revision Counsel. 42 USC 1988 – Proceedings in Vindication of Civil Rights States themselves cannot be sued as “persons” under Section 1983, but individual government employees can be.
Qualified Immunity
The biggest practical obstacle to a Section 1983 damages claim against an individual official is qualified immunity. Under this doctrine, a government official cannot be held personally liable for money damages unless the right they violated was “clearly established” at the time of their conduct.16Legal Information Institute. Qualified Immunity The standard asks whether a reasonable official in the defendant’s position would have known their actions were unconstitutional. If no prior court decision put the specific conduct beyond debate, the official walks away from liability even if the court agrees the conduct was unconstitutional.
The Supreme Court has shown no inclination to reconsider qualified immunity, and legislative proposals to abolish it at the federal level have stalled. A handful of states, including Colorado and New Mexico, have passed civil rights statutes that prohibit qualified immunity as a defense in state-court claims against government officials. Others, like Iowa, have moved in the opposite direction by broadening immunity protections. The rules vary significantly depending on whether you file in federal or state court and which state you are in, and that is a question worth answering before you commit to a case.