Fourteenth Amendment:

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 Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” 1 The Supreme Court has construed the Fourteenth Amendment’s Due Process Clause to impose the same procedural due process limitations on the states as the Fifth Amendment does on the Federal Government.2 Broadly speaking, procedural due process requires state actors to provide certain procedural protections before they deprive a person of any protected life, liberty, or property interest.3 Unless one of those protected interests is at stake, the Due Process Clause does not apply.4

When considering whether a protected interest is at stake, the Supreme Court traditionally looked to the common understanding of the terms “life,” “liberty,” and “property,” as embodied in the common law. The Court has always accepted that the liberty interest includes the interest in freedom from physical restraint5 and the property interest attaches to the ownership of personal and real property.6 In the 1960s and 1970s, the Court adopted more expansive views of the liberty and property interests, holding that the Due Process Clause protects some non-traditional interests such as conditional property rights and liberty and property rights created by statute.7 In modern cases involving alleged property interests, the Court has often decided whether a property interest exists by considering whether a law or government policy created an “entitlement” —a reasonable expectation that a government-provided benefit would continue.8 Modern cases have found protected liberty interests in the exercise of constitutional rights9 and where state laws create an expectation related to individual liberty.10 The scope of the life interest has not been the subject of significant litigation.11

When a protected interest is at stake, due process generally requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power.12 However, the specific procedures needed to satisfy due process vary depending on the circumstances.13 One key consideration in determining what procedures are required is whether the government conduct at issue is a part of a criminal or civil proceeding.14 The Court has held that the “appropriate framework” for due process analysis of criminal procedures is a narrow inquiry into whether a procedure is offensive to the concept of fundamental fairness.15 In the civil context, by contrast, the Court applies a balancing test that evaluates the government’s chosen procedure in light of the private interest affected, the risk of erroneous deprivation of that interest under the chosen procedure, and the government interest at stake.16

Historical practice is often relevant in due process cases, as the Court analyzes the requirements of due process in part by examining the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and in the early years of the Republic.17 This means that the Court may be more likely to uphold legal procedures with a long historical pedigree. However, it does not necessarily follow that a procedure that was accepted in British law and adopted in this country is, or remains, an essential element of due process of law. If that were so, the Court has cautioned, the procedures of the first half of the seventeenth century would be “fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment.” 18 Thus, the Constitution does not obligate the states to use any particular practice and procedure that existed at common law. Rather, as long as the states comply with due process requirements, they may learn from and build on the country’s past experiences to make changes they deem to be necessary.19

The government often provides due process in the form of civil or criminal judicial proceedings but, in some contexts, the government may deprive a person of a protected interest without instituting judicial proceedings.20 For instance, administrative and executive proceedings are not judicial in nature, yet they may satisfy the requirements of the Due Process Clause.21 The Due Process Clause does not require de novo judicial review of agency proceedings, and in some circumstances may not require judicial review of agency decisions at all.22

While the Constitution requires separation between the three Branches of the Federal Government, states enjoy greater flexibility, and it is up to a state to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate.23 Thus, the Due Process Clause does not prohibit a state from conferring judicial functions upon non-judicial bodies, or from delegating powers to a court that are legislative in nature.24

Footnotes

1

U.S. Const. amend. XIV.

2

Cf. Arnett v. Kennedy, 416 U.S. 134 (1974); see also Amdt5.6.1 Overview of Due Process Procedural Requirements to Amdt5.6.3 Military Proceedings and Procedural Due Process.

3

Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

4

Bd. of Regents v. Roth, 408 U.S. 564, 569–71 (1972) ( “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.” ).

5

E.g., Allgeyer v. Louisiana, 165 U.S. 578, 588 (1897).

6

E.g., McMillen v. Anderson, 95 U.S. 37, 40 (1877) ( “The revenue laws of a State may be in harmony with the Fourteenth Amendment to the Constitution of the United States, which declares that no State shall deprive any person of life, liberty, or property without due process of law.” ).

7

E.g., Sniadach v. Family Fin. Corp., 395 U.S. 337, 342 (1969) (Harlan, J., concurring); Fuentes v. Shevin, 407 U.S. 67 (1972); Wolff v. McDonnell, 418 U.S. 539 (1974).

8

E.g., Roth, 408 U.S. at 577.

9

E.g., id. at 572.

10

E.g., Vitek v. Jones, 445 U.S. 480, 483 (1980); Wisconsin v. Constantineau, 400 U.S. 433 (1971).

11

Some due process cases involving questions of life and death are brought based on a claimed liberty interest. See, e.g., Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261 (1990) (liberty interest in refusing medical treatment); Washington v. Glucksberg, 521 U.S. 702 (1997) (no liberty interest in assisted suicide).

12

Thus, where a litigant had the benefit of a “full and fair trial” in the state courts, and “her rights are measured, not by laws made to affect her individually, but by general provisions of law applicable to all those in like condition,” she is not deprived of property without due process of law, even if she can be regarded as deprived of property by an adverse result. Marchant v. Pa. R.R., 153 U.S. 380, 386 (1894).

13

Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884) ( “Due process of law is [process which], following the forms of law, is appropriate to the case and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.” ) Accord Hurtado v. California, 110 U.S. 516, 537 (1884).

14

See Medina v. California, 505 U.S. 437, 443 (1992).

15

Id.

16

See Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Nelson v. Colorado, No. 15-1256, slip op. at 1, 5 (Apr. 19, 2017) (holding that the Mathews test controls when evaluating state procedures governing the continuing deprivation of property after a criminal conviction has been reversed or vacated, with no prospect of reprosecution).

17

Twining v. New Jersey, 211 U.S. 78, 101 (1908); Brown v. New Jersey, 175 U.S. 172, 175 (1899); see also Hurtado v. California, 110 U.S. 516, 529 (1884) ( “A process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and this country.” ).

18

Twining, 211 U.S. at 101.

19

Hurtado v. California, 110 U.S. 516, 529 (1884); Brown v. New Jersey, 175 U.S. 172, 175 (1899); Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 244 (1944).

20

Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S. 660, 668 (1890).

21

For instance, proceedings to raise revenue by levying and collecting taxes are not necessarily judicial proceedings, but that does not impair their validity. McMillen v. Anderson, 95 U.S. 37, 41 (1877).

22

See, e.g., Moore v. Johnson, 582 F.2d 1228, 1232 (9th Cir. 1978) (upholding the preclusion of judicial review of decisions of the Veterans Administration regarding veterans’ benefits).

23

Carfer v. Caldwell, 200 U.S. 293, 297 (1906).

24

For instance, state statutes vesting in a parole board certain judicial functions, Dreyer v. Illinois, 187 U.S. 71, 83–84 (1902), or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade, New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 562 (1905), or vesting in a probate court authority to appoint park commissioners and establish park districts, Ohio v. Akron Park Dist., 281 U.S. 74, 79 (1930), are not in conflict with the Due Process Clause and present no federal question. By contrast, constitutional separation-of-powers principles and the limitations on the federal judiciary laid out in Article III prohibit similar arrangements at the federal level. See ArtIII.S1.5.3 Imposing Non-Adjudicatory Functions on Courts.