The Right to Due Process

The Fifth and Fourteenth Amendments to the United States Constitution provide that no one can be deprived of “life, liberty, or property” without “due process of law.”  Courts refer to these clauses as the “due process clauses.”

Meaning of Due Process

Due process means that a person has the right to fair procedures before the government takes away her life, freedom, or property.  As one example, the due process clauses protect a person’s right to a fair trial before being sent to prison.

Why does the Due Process Clause appear in both the Fifth and Fourteenth Amendments?

Because  the Fifth Amendment only applies to the federal government.   The Fourteenth Amendment’s due process clause  provides, “… nor shall any state deprive any person of life, liberty, or property, without due process of law.”  State governments must also provide due process of law.

Congress passed the Fourteenth Amendment to insure that state governments did not deprive black people – – former slaves – – of the Constitution’s basic freedoms.


Over the years, the Supreme Court has gradually held that nearly all of the rights guaranteed in the Bill of Rights apply to the states because of the Fourteenth Amendment.  The Supreme Court’s application of the Bill of Rights to the states is called incorporation of the Bill of Rights against the States.

For example, the First Amendment prohibits the government from depriving a person of freedom of speech.  If a State were to try and deprive a person of his right to freedom of speech, the person would be protected by the First Amendment to the United States Constitution, as incorporated against the states by the Fourteenth Amendment.

Due Process is Flexible

Due process issues arise in a variety of circumstances.

For example, the Supreme Court has held that a student is entitled to procedural due process before being suspended from public school. Also, the government should follow due process before taking away someone’s disability or welfare benefits.
Before depriving someone of a protected interest, the government must usually, at a minimum, provide (i) the person with notice; and (ii) an opportunity to be heard (to explain why the government should not deprive him of his protected interest).
How much due process does a person receive before the government takes away his life, liberty, or property?

Due process is flexible: the amount and type of due process the government must provide depends on the situation.  The Supreme Court instructs courts to conduct a balancing test.  Courts should weigh the private interest that will be affected by the state action against the state’s interest and the burden of providing additional protections.

Compare two situations:  a defendant who is on trial for murder and a disruptive student that a school will suspend for two days.  The defendant is in a very serious situation because he could lose his freedom and perhaps his life.  For that reason, courts will require the government to provide a significant amount of due process protection for the defendant.

On the other hand, the student who faces suspension from public school is entitled to less due process protection.  Before being suspended he is probably only entitled to a some type of school administrative proceeding.