What is due process of law?

Due process of law means that government must follow fair procedures and provide fair treatment before depriving any person of life, liberty, or property. The principle appears in two places in the Constitution. The Fifth Amendment, ratified on December 15, 1791, declares that no person shall be deprived of life, liberty, or property, without due process of law, binding the federal government. The Fourteenth Amendment, ratified on July 9, 1868, applies the same restraint to state and local governments through identical language.

The Supreme Court has developed two main branches of due process doctrine. Procedural due process focuses on fair procedures: notice of the charges or government action, an opportunity to be heard, a neutral decision maker, and the chance to challenge adverse evidence. Mathews v. Eldridge (1976) provides the standard balancing test, weighing the private interest affected, the risk of erroneous deprivation under existing procedures and the value of additional safeguards, and the government's interest including the burden of additional process. Goldberg v. Kelly (1970) required pre-termination evidentiary hearings before a state could cut off welfare benefits. Cleveland Board of Education v. Loudermill (1985) required notice and an opportunity to respond before terminating tenured public employees.

Substantive due process protects certain fundamental rights from government interference regardless of what procedures are used. The Court has recognized substantive due process rights to marry under Loving v. Virginia (1967) and Obergefell v. Hodges (2015), to direct the upbringing of children under Pierce v. Society of Sisters (1925), to bodily integrity under Cruzan v. Director, Missouri Department of Health (1990), to interstate travel under Saenz v. Roe (1999), and to engage in consensual private sexual conduct under Lawrence v. Texas (2003). Washington v. Glucksberg (1997) sets out the test for recognizing new substantive due process rights, requiring that the right be deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty. Dobbs v. Jackson Women's Health Organization (2022) used this test to overrule Roe v. Wade (1973) by concluding that abortion did not satisfy the historical requirement.

Due process traces its English roots to the 1215 Magna Carta, which declared that no free man shall be seized or imprisoned, or stripped of his rights or possessions, except by the lawful judgment of his equals or by the law of the land. The phrase due process of law replaced law of the land in later English statutes. Naturalization candidates should know due process as the central guarantee of fair government treatment.