Fourteenth Amendment, Section 1:

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.

If a state seeks to deprive a person of a protected life, liberty, or property interest, the Fourteenth Amendment’s Due Process Clause requires that the state first provide certain procedural protections.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 Fifth Amendment due process case law is therefore relevant to the interpretation of the Fourteenth Amendment.3

The Court first addressed due process in the 1855 Fifth Amendment case Murray’s Lessee v. Hoboken Land and Improvement Co.4 In Murray’s Lessee, the Court held that it would determine (independently from Congress) whether the government had provided due process by evaluating whether the statutory process conflicted with the Constitution and, if not, whether it comported with “those settled usages and modes of proceedings existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.” 5 In the 1884 Fourteenth Amendment case Hurtado v. California, the Court held that a process could be judged based on whether it had attained “the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law.” 6 To hold that only historical, traditional procedures can constitute due process, the Court said, would render the law “incapable of progress or improvement.” 7 The Supreme Court articulated the modern test for what process is required before the government may invade a protected interest in the 1976 case Mathews v. Eldridge.8

As a general matter, the Supreme Court has held that the constitutional requirement of procedural due process allows for variances in procedure “appropriate to the nature of the case.” 9 Nonetheless, the Court’s decisions have identified key goals and requirements of procedural due process that apply in many circumstances. The Court has explained that “[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” 10 Thus, the required elements of due process are those that “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the basis upon which a state proposes to deprive them of protected interests.11

The core requirements of procedural due process are notice12 and a hearing13 before an impartial tribunal,14 though specific requirements in each case vary based on the particular interests at stake.15 Due process may also require other procedural protections such as an opportunity for confrontation and cross-examination, discovery, a decision based on the record, or the opportunity to be represented by counsel.16 As long as the states provide adequate procedural protections, they possess significant discretion to structure courts and regulate state judicial proceedings,17 set statutes of limitations,18 and specify burdens of proof or evidentiary presumptions.19 Except as otherwise noted, the following essays focus on procedural due process requirements in civil and administrative proceedings. Later essays discuss procedural due process requirements in criminal cases.20

Footnotes

1

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

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

For additional discussion of pre-modern cases construing the Fifth Amendment’s Due Process Clause, see Amdt5.5.2 Historical Background on Due Process; see also Amdt5.6.1 Overview of Due Process Procedural Requirements.

4

59 U.S. (18 How.) 272 (1855).

5

Id. at 277. The Court took a similar approach to Fourteenth Amendment due process interpretation in Davidson v. City of New Orleans, 96 U.S. 97 (1878), and Munn v. Illinois, 94 U.S. 113 (1877).

6

110 U.S. 516, 528 (1884).

7

Id. at 529.

8

424 U.S. 319, 335 (1976); see also Amdt14.S1.5.4.2 Due Process Test in Mathews v. Eldridge.

9

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

10

Carey v. Piphus, 435 U.S. 247, 259 (1978). “[P]rocedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases.” Mathews, 424 U.S. at 344.

11

Fuentes v. Shevin, 407 U.S. 67, 81 (1972). At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one’s interests even if one cannot change the result. Piphus, 435 U.S. at 266–67; Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Nelson v. Adams, 529 U.S. 460 (2000) (amendment of judgment to impose attorney’s fees and costs to sole shareholder of liable corporate structure invalid without notice or opportunity to dispute).

12

See Amdt14.S1.5.4.3 Notice of Charge and Due Process.

13

See Amdt14.S1.5.4.4 Opportunity for Meaningful Hearing.

14

See Amdt14.S1.5.4.5 Impartial Decision Maker.

15

Mullane, 339 U.S. at 313 ( “Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” ). Due process does not require notice and a hearing for all possible deprivations of protected interests. See, e.g., Amdt14.S1.5.7.1 State Taxes and Due Process Generally.

16

See Amdt14.S1.5.4.6 Additional Requirements of Procedural Due Process.

17

See Amdt14.S1.5.4.7 Power of States to Regulate Procedures.

18

See Amdt14.S1.5.4.8 Statutes of Limitations and Procedural Due Process.

19

See Amdt14.S1.5.4.9 Burdens of Proof and Presumptions.

20

See Amdt14.S1.5.5.1 Overview of Procedural Due Process in Criminal Cases; Amdt14.S1.5.6.1 Overview of Criminal Cases and Post-Trial Due Process.