Due Process Generally

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.

The Fourteenth Amendment’s Due Process Clause provides that no state may “deprive any person of life, liberty, or property, without due process of law.” 1 The Supreme Court has applied the Clause in two main contexts. First, the Court has construed the Clause to provide protections that are similar to those of the Fifth Amendment’s Due Process Clause except that, while the Fifth Amendment applies to federal government actions, the Fourteenth Amendment binds the states.2 The Fourteenth Amendment’s Due Process Clause guarantees “procedural due process,” meaning that government actors must follow certain procedures before they may deprive a person of a protected life, liberty, or property interest.3 The Court has also construed the Clause to protect “substantive due process,” holding that there are certain fundamental rights that the government may not infringe even if it provides procedural protections.4

Second, the Court has construed the Fourteenth Amendment’s Due Process Clause to render many provisions of the Bill of Rights applicable to the states.5 As originally ratified, the Bill of Rights restricted the actions of the federal government but did not limit the actions of state governments. However, following ratification of the Reconstruction Amendment, the Court has interpreted the Fourteenth Amendment’s Due Process Clause to impose on the states many of the Bill of Rights’ limitations, a doctrine sometimes called “incorporation” against the states through the Due Process Clause. Litigants bringing constitutional challenges to state government action often invoke the doctrines of procedural or substantive due process or argue that state action violates the Bill of Rights, as incorporated against the states. The Due Process Clause of the Fourteenth Amendment has thus formed the basis for many high-profile Supreme Court cases.6

The Fourteenth Amendment prohibits states from depriving “any person” of life, liberty, or property without due process of law. The Supreme Court has held that this protection extends to all natural persons (i.e., human beings), regardless of race, color, or citizenship.7 The Court has also considered multiple cases about whether the word “person” includes “artificial persons,” meaning entities such as corporations. As early as the 1870s, the Court appeared to accept that the Clause protects corporations, at least in some circumstances. In the 1877 Granger Cases, the Court upheld various state laws without questioning whether a corporation could raise due process claims.8 In a roughly contemporaneous case arising under the Fifth Amendment, the Court explicitly declared that the United States “equally with the States . . . are prohibited from depriving persons or corporations of property without due process of law.” 9 Subsequent decisions of the Court have held that a corporation may not be deprived of its property without due process of law.10 By contrast, in multiple cases involving the liberty interest, the Court has held that the Fourteenth Amendment protects the liberty of natural, not artificial, persons.11 Nevertheless, the Court has at times allowed corporations to raise claims not based on the property interest. For instance, in a 1936 case, a newspaper corporation successfully argued that a state law deprived it of liberty of the press.12

A separate question concerns the ability of government officials to invoke the Due Process Clause to protect the interests of their office. Ordinarily, the mere official interest of a public officer, such as the interest in enforcing a law, does not enable him to challenge the constitutionality of a law under the Fourteenth Amendment.13 Moreover, municipal corporations lack standing “to invoke the provisions of the Fourteenth Amendment in opposition to the will of their creator,” the state.14 However, the Court has acknowledged that state officers have an interest in resisting “an endeavor to prevent the enforcement of statutes in relation to which they have official duties,” even if the officials have not sustained any “private damage.” 15 State officials may therefore ask federal courts “to review decisions of state courts declaring state statutes, which [they] seek to enforce, to be repugnant to” the Fourteenth Amendment.16

1: U.S. Const. amend. XIV.
2: For discussion of the Fifth Amendment’s Due Process Clause, see Amdt5.5.1 Overview of Due Process.
3: See Amdt14.S1.5.1 Overview of Procedural Due Process to Amdt14.S1.5.8.2 Protective Commitment and Due Process.
4: See Amdt14.S1.6.1 Overview of Substantive Due Process to Amdt14.S1.6.5.3 Civil Commitment and Substantive Due Process.
5: See Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights.
6: Among numerous other examples, see, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Gideon v. Wainwright, 372 U.S. 335 (1963); Griswold v. Connecticut, 381 U.S. 479 (1965); McDonald v. Chicago, 561 U.S. 742 (2010).
7: Yick Wo v. Hopkins, 118 U.S. 356 (1886); Terrace v. Thompson, 263 U.S. 197, 216 (1923). See Hellenic Lines v. Rhodetis, 398 U.S. 306, 309 (1970).
8: Munn v. Illinois, 94 U.S. 113 (1877).
9: Sinking Fund Cases, 99 U.S. 700, 718–19 (1879).
10: Smyth v. Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Co. v. Paramount Exch., 262 U.S. 544, 550 (1923); Liggett Co. v. Baldridge, 278 U.S. 105 (1928).
11: Nw. Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906); W. Turf Ass’n v. Greenberg, 204 U.S. 359, 363 (1907); Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925).
12: Grosjean v. Am. Press Co., 297 U.S. 233, 244 (1936) ( “a corporation is a ‘person’ within the meaning of the equal protection and due process of law clauses” ). In First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), faced with the validity of state restraints upon expression by corporations, the Court did not determine that corporations have First Amendment liberty rights—and other constitutional rights—but decided instead that expression was protected, irrespective of the speaker, because of the interests of the listeners. See id. at 778 n.14. In Citizens United v. FEC, 558 U.S. 310 (2010), the Court held that the First Amendment prohibits banning political speech based on the speaker’s corporate identity. While Citizens United involved federal regulation, it overruled a prior case that had upheld a related state regulation, Austin v. Michigan Chamber of Com., 494 U.S. 652 (1990).
13: Pennie v. Reis, 132 U.S. 464 (1889); Taylor & Marshall v. Beckham (No. 1), 178 U.S. 548 (1900); Tyler v. Judges of Ct. of Registration, 179 U.S. 405, 410 (1900); Straus v. Foxworth, 231 U.S. 162 (1913); Columbus & Greenville Ry. v. Miller, 283 U.S. 96 (1931).
14: City of Pawhuska v. Pawhuska Oil Co., 250 U.S. 394 (1919); City of Trenton v. New Jersey, 262 U.S. 182 (1923); Williams v. Mayor of Baltimore, 289 U.S. 36 (1933). But see Madison Sch. Dist. v. WERC, 429 U.S. 167, 175 n.7 (1976) (reserving question whether municipal corporation as an employer has a First Amendment right assertable against a state).
15: Coleman v. Miller, 307 U.S. 433, 442, 445 (1939); Boynton v. Hutchinson Gas Co., 291 U.S. 656 (1934); S.C. Highway Dep’t v. Barnwell Bros., 303 U.S. 177 (1938).
16: Coleman, 307 U.S. at 442–43. The converse is not true, however, and the interest of a state official in vindicating the Constitution provides no legal standing to attack the constitutionality of a state statute in order to avoid compliance with it. Smith v. Indiana, 191 U.S. 138 (1903); Braxton Cnty. Ct. v. West Virginia, 208 U.S. 192 (1908); Marshall v. Dye, 231 U.S. 250 (1913); Stewart v. Kansas City, 239 U.S. 14 (1915). See also Coleman v. Miller, 307 U.S. 433, 437–46 (1939).