Due process is guaranteed by two amendments to the U.S. Constitution: the Fifth Amendment, which binds the federal government, and the Fourteenth Amendment, which binds state and local governments. Both use nearly identical language, forbidding the government from depriving any person of “life, liberty, or property, without due process of law.”1Legal Information Institute. Due Process Together they create a single constitutional floor: whatever level of government is acting, it has to act fairly before it takes something from you.
The Fifth Amendment Covers the Federal Government
The Fifth Amendment was ratified in 1791 as part of the Bill of Rights. Its due process clause states that no person shall “be deprived of life, liberty, or property, without due process of law.”2Library of Congress. U.S. Constitution – Fifth Amendment Because the Bill of Rights was written as a check on the new national government, this clause applies to federal actors: federal agencies, federal law enforcement, and the federal courts. A federal prosecutor seeking an indictment, or a federal agency exercising eminent domain, has to meet its standards.
Due process is only one of several protections packed into the Fifth Amendment. The same amendment also guarantees a grand jury for serious federal crimes, bars double jeopardy, protects the right to remain silent, and requires the government to pay just compensation when it takes private property for public use.2Library of Congress. U.S. Constitution – Fifth Amendment
The Fourteenth Amendment Covers State and Local Governments
For roughly the first eight decades of the Constitution, the due process guarantee did not reach state or local officials. A state legislature or a city police department could act in ways that would have been unconstitutional if the federal government tried them, and there was no constitutional remedy.
That changed after the Civil War. The Fourteenth Amendment, ratified on July 9, 1868, declares in Section 1 that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”3National Archives. 14th Amendment to the U.S. Constitution – Civil Rights (1868) It was one of three Reconstruction-era amendments designed to guarantee civil and legal rights to formerly enslaved people.4U.S. Senate. Landmark Legislation – The Fourteenth Amendment Its effect was to bind states, counties, cities, and school boards to the same due process standard the Fifth Amendment had long imposed on Washington.
Why Two Amendments Say Almost the Same Thing
The duplication is historical. In 1791, the Constitution’s framers were restraining a new federal government and left the states to regulate themselves. In 1868, Congress and the ratifying states extended the same restraint downward. The Fifth speaks to federal action; the Fourteenth speaks to state action; the words in between are effectively identical.
The Fourteenth Amendment has also done more than mirror the Fifth. Through a Supreme Court doctrine called selective incorporation, its due process clause has been used to apply most of the Bill of Rights against state governments as well, one right at a time. A few pieces remain unincorporated, notably the Fifth Amendment’s grand jury requirement and the Seventh Amendment’s civil jury guarantee, which is why states are free to charge felonies without a grand jury and to set their own civil jury rules.5Library of Congress. Modern Doctrine on Selective Incorporation of Bill of Rights
Who Due Process Protects
Both clauses use the word “person,” not “citizen.” The Supreme Court has consistently read that word to cover every person physically present in the United States, regardless of immigration status. In Zadvydas v. Davis (2001), the Court said the Due Process Clause applies to all persons within the country, “whether their presence here is lawful, unlawful, temporary, or permanent.” The Court reinforced the point in Plyler v. Doe (1982), holding that “even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.”6Library of Congress. Aliens in the United States – Article I, Section 8, Clause 18
A noncitizen facing deportation, a visitor detained by police, and an undocumented worker in a fight with a federal agency all have the right to fair procedures before the government takes their liberty or property.
What Due Process Actually Requires
Courts read both clauses to guarantee two different kinds of protection, and it helps to know which one is doing the work in a given situation.
Procedural Due Process
Procedural due process is about the steps the government must follow before it takes something from you. The core requirements are three: notice of what the government intends to do and why, a meaningful opportunity to be heard, and a decision by a neutral decision-maker.7Legal Information Institute. Procedural Due Process These requirements reach beyond criminal trials. They also govern civil matters like the revocation of a professional license or the termination of government benefits.
Notice usually comes through formal service of process in a lawsuit, and it has to be “reasonably calculated” to actually inform you and give you time to respond.8Legal Information Institute. Service of Process The opportunity to be heard lets you present evidence and challenge the government’s case before the decision becomes final. The neutrality requirement means the person deciding your case cannot also be the person who brought it.
Not every government action triggers these protections. You must have a recognized interest in life, liberty, or property at stake. Property interests can include benefits you are legally entitled to receive or a public job in which the rules create a legitimate expectation of continued employment.9Legal Information Institute. Property Deprivations and Due Process A general hope for something the government has not promised does not qualify.
Substantive Due Process
Substantive due process asks a different question: is the law itself fair? Even if every procedure is followed perfectly, a law can still violate due process if it burdens fundamental rights without adequate justification. The doctrine protects rights the Supreme Court has recognized as deeply rooted in the nation’s history and traditions, even when those rights are not spelled out in the Constitution.10Legal Information Institute. Substantive Due Process Recognized examples include the right to marry (Loving v. Virginia, 1967; Obergefell v. Hodges, 2015), the right to privacy in contraceptive decisions (Griswold v. Connecticut, 1965), the right of parents to direct their children’s upbringing (Troxel v. Granville, 2000), and the right to refuse unwanted medical treatment (Cruzan v. Missouri Dept. of Health, 1989).
Due process also demands that criminal laws be clear enough to understand. When a statute is so vague that an ordinary person cannot tell what it forbids, courts can strike it down as “void for vagueness,” both because vague laws fail to give fair warning and because they hand too much discretion to police and prosecutors.11Legal Information Institute. Void for Vagueness and the Due Process Clause – Doctrine and Practice
Remedies When Due Process Is Violated
The remedy depends on how the violation happened.
In criminal cases, the main remedy is the exclusionary rule. Evidence obtained in violation of your constitutional rights, along with additional evidence discovered because of it, can be kept out of court.12Legal Information Institute. Exclusionary Rule The exclusionary rule does not apply in civil cases, including deportation hearings.
When a state or local official violates your constitutional rights, you can sue under 42 U.S.C. ยง 1983. That statute lets you seek monetary damages and, in some cases, a court order stopping the unconstitutional conduct, from any person who deprived you of federal rights while acting under state authority.13Office of the Law Revision Counsel. 42 U.S. Code 1983 – Civil Action for Deprivation of Rights Section 1983 suits face a significant hurdle called qualified immunity, which shields officials from personal liability unless their conduct violated a “clearly established” legal rule. Courts often read that standard narrowly, requiring a prior decision with closely similar facts, which is one reason the exclusionary rule ends up being the practical remedy in many criminal investigations.12Legal Information Institute. Exclusionary Rule