Due Process

The idea traces to Magna Carta of 1215, which promised that no free man would be punished except by the lawful judgment of his peers or the law of the land. The Fifth Amendment, ratified in 1791, bars the federal government from depriving any person of life, liberty, or property without due process of law, and the Fourteenth Amendment, ratified July 9, 1868, imposed the same limit on the states. The guarantee protects every person, not only citizens, a point the Supreme Court has repeatedly applied to noncitizens within the United States.

Procedural due process requires fair procedures, usually notice and a meaningful opportunity to be heard before a neutral decision maker. In Goldberg v. Kelly in 1970 the Court required a hearing before welfare benefits were cut off, and in Mathews v. Eldridge in 1976 it set a balancing test weighing the private interest, the risk of error, and the government's burden. In 2025 the Court held that people the government sought to remove under the Alien Enemies Act were entitled to notice and a chance to challenge their removal in court, one of several disputes over how much process deportation requires.

Substantive due process holds that some liberties are protected from government interference regardless of procedure. The Court used it in the Lochner era to strike down economic regulations, abandoned that approach in 1937, and later relied on it to recognize rights to marital privacy, contraception, abortion, and same-sex marriage. In Dobbs v. Jackson Women's Health Organization in 2022 it held that the Constitution does not protect a right to abortion, limiting protected unenumerated rights to those deeply rooted in history and tradition. The clause is also the vehicle through which most of the Bill of Rights applies to the states.