What does due process mean?

Due process means that government must follow fair, established legal procedures before depriving any person of life, liberty, or property. The Constitution guarantees due process twice. The Fifth Amendment, ratified in 1791, applies to the federal government and provides that no person shall be deprived of life, liberty, or property, without due process of law. The Fourteenth Amendment, ratified in 1868 after the Civil War, applies the same restriction to state governments and to local governments through them.

Due process has two distinct dimensions. Procedural due process requires that government follow fair procedures, such as adequate notice of charges or proposed action, an opportunity to be heard before a neutral decisionmaker, the right to present evidence and confront opposing witnesses, and a written record of the decision. The level of process required depends on what is at stake; a criminal trial demands more procedure than the suspension of a driver's license, but both require some procedure. The Supreme Court set out a flexible balancing test in Mathews v. Eldridge in 1976, weighing the private interest, the risk of error, and the government's interest.

Substantive due process is more controversial. It holds that some rights are so fundamental that government cannot interfere with them regardless of what process it follows. The Court has used substantive due process to protect privacy and family relationships in cases like Meyer v. Nebraska in 1923, Griswold v. Connecticut in 1965, Loving v. Virginia in 1967 striking down bans on interracial marriage, Lawrence v. Texas in 2003 striking down sodomy laws, and Obergefell v. Hodges in 2015 requiring states to license same-sex marriages. The Court rejected substantive due process as the basis for abortion rights in Dobbs v. Jackson Women's Health Organization in 2022, though other substantive due process precedents remained intact.

Due process has roots stretching back to the Magna Carta of 1215, which promised that no free man would be imprisoned or stripped of property except by the lawful judgment of his peers or by the law of the land. American due process incorporated and expanded that English common law tradition, applying it to all persons rather than just freemen and to all branches of government.