Fourteenth Amendment Due Process

Since its ratification, the Fourteenth Amendment's due process clause has ensured that all Americans can enjoy their right to life, liberty and property with out State interference. Over the decades since it passed Congress, the Supreme Court has recognized many rights not specifically enumerated in the original text. 

The Due Process Clause of the Fourteenth Amendment was groundbreaking in its era. It has played a significant role in molding American society by defining our essential rights.

The Fourteenth Amendment is one of three Amendments passed after the Civil War to ensure newly freed African Americans could enjoy the same constitutional rights as other Americans. It contains six clauses, each addressing a different issue. The Fourteenth Amendment includes the following:

The Fourteenth Amendment to the U.S. Constitution states that government cannot deprive "any person of life, liberty, or property, without due process of law." This echoes the Fifth Amendment, which includes the same language along with protections against self-incrimination, double jeopardy, and others related to criminal proceedings. 

This article focuses on due process under the Fourteenth Amendment.

What the Fourteenth Amendment Says About Due Process

Section 1 of the Fourteenth Amendment states:

"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."

With language mirroring the Fifth Amendment, under the Fourteenth Amendment, the government (federal and state) cannot deprive any "person of life, liberty, or property, without due process of law."

As noted above, the Fourteenth Amendment is part of a trio of amendments passed in the aftermath of the U.S. Civil War. The Thirteenth Amendment abolished slavery, and the Fifteenth Amendment gave Black males the right to vote. The Fourteenth Amendment applies to state actions, like state laws that discriminate against its citizens.

The due process clause of the Fourteenth Amendment guarantees certain fundamental rights and safeguards against deleterious state action.

Interpretation and Analysis

In the United States, the Supreme Court (SCOTUS) is the final arbiter of constitutional law. This signifies that they possess ultimate authority on constitutional law issues.

Decisions made by the Supreme Court guide us in interpreting and applying the law appropriately. This section will review court cases that illustrate different aspects of the 14th Amendment due process clause.

Although the due process clause is singular in the text, courts have applied it in two ways:

  • Procedural due process
  • Substantive due process 

Procedural due process is focused on how the government makes decisions that deprive a person of life, liberty, or property. Governments cannot make arbitrary decisions and policies which apply to criminal and civil cases.

Substantive due process focuses on freedom from governmental interference with our fundamental rights. The Fifth Amendment also deals with procedural and substantive due process as applied to the federal government, while the Fourteenth Amendment applies to state actions.

The Slaughter-House Cases

The Slaughterhouse Cases offer an early snapshot of how federal courts applied the Fourteenth Amendment's due process clause. In the Slaughterhouse cases, a group of butchers argued that a Louisiana law authorizing a monopoly on butchering cattle deprived them of due process under the Fourteenth Amendment.

The Court disagreed. They rejected this argument, noting that "[U]nder no construction of [the due process clause] that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision."

Goldberg v. Kelly 

Goldberg v. Kelly is the next Supreme Court case examining the Fourteenth Amendment's due process clause. In Goldberg, several New York residents received financial assistance under one of two programs:

  • The federally funded program for Families with Dependent Children
  • New York State's Home Relief program

They challenged the constitutionality of procedures for notice and termination of financial assistance. The plaintiffs argued that New York terminated their financial assistance without proper notice and an opportunity to be heard.

The District Court agreed that the termination of benefits was unconstitutional. The Court of Appeals affirmed this decision, and the State of New York appealed to the Supreme Court.

In the opinion, Justice Brennan acknowledged the sole and narrow issue before the court was whether the due process clause requires that the recipient have an evidentiary hearing before the termination of benefits. The Supreme Court agreed with the lower courts.

Several holdings resulted from this decision:

  • Welfare benefits are statutory benefits for qualified persons. Therefore, any attempt to terminate those benefits requires procedural due process.
  • The state must hold a pre-termination evidentiary hearing to give the welfare recipient due process. Although the Court agreed that the state did not have to hold a judicial or quasi-judicial hearing, it did have to provide recipients with timely and adequate notice and an opportunity to defend themselves.

From this case, we learn that procedural due process requires timely and adequate notice and an opportunity for a hearing. In practice, this means giving details about the underlying issue and a meaningful opportunity to defend yourself.

Mathews v. Eldridge

Mathews v. Eldridge builds off of Goldberg. In this case, the petitioner, the then-U.S. Secretary of Health, Education, and Welfare, appealed a lower court decision reversing a termination of benefits for Eldridge.

A Social Security recipient, Eldridge sued the government after they terminated his benefits without a hearing. Eldridge challenged the constitutionality of the procedures used to determine eligibility for benefits., under the Social Security Act.

Eldridge did not exhaust his administrative remedies before he sued in the District Court for the District of West Virginia. The District Court sided with Eldridge, and the Court of Appeals sided with Eldridge. The then-Secretary of Health appealed to the U.S. Supreme Court.

Although the Court ruled against Eldridge and reversed the lower court's decisions, we can learn more about procedural due process from this case.

The Court noted that "due process is flexible and calls for such procedural protections as the particular situation demands." They identified three factors to determine the "constitutional sufficiency of administrative procedures prior to the initial termination of benefits and pending review."

  1. The private interest is affected by official government actions.

  2. The risk of deprivation of that interest through governmental procedures.

  3. The government's interest includes the fiscal and administrative burdens of substitute procedures.

Mathews builds upon Goldberg by identifying these factors and adding to our understanding of procedural due process. We've already learned that due process requires notice and an opportunity for a hearing. Mathews shows us how to identify whether or not an administrative procedure is constitutional.

Substantive Due Process

Substantive due process differs from procedural due process because it focuses on individual rights. Like procedural due process, the Fifth Amendment also covers substantive due process.

The Fifth Amendment applies to the federal government, while the Fourteenth Amendment applies to state governments, including state legislatures.

Fundamental Rights

Fundamental rights are deeply ingrained into our Constitution (including the Bill of Rights) and those the Supreme Court identifies in specific clauses, like the due process clause.

Over the years, the Court has determined that it will apply strict scrutiny to any laws encroaching on these rights. A few examples of fundamental rights include the following:

Again, we turn to the Supreme Court to understand how to interpret and apply substantive due process.

The liberty interest is a principle that applies to most due process cases. The Fourteenth Amendment guarantees your right to liberty, along with your right to life and property. In many substantive due process cases, the Court relies on this guarantee to determine whether or not a right is fundamental.

Lochner v. New York

Lochner v. New York is a landmark Supreme Court case. In this case, New York State passed a Bakeshop Act in 1895 (the Act). Under the Act, one could not employ bakers for more than 10 hours per day or 60 hours per week.

Lochner owned a bakery in New York State, and his employees worked unusual shifts. They came to prepare the dough in the evening, slept at an onsite dormitory, and baked bread in the morning. Lochner paid them for all hours worked, including their time in the dormitory.

New York State charged Lochner with violating the Act. Lochner argued that this law encroached upon his right to contract freely. Lochner lost in the trial court, New York State's Supreme Court, and New York State's Court of Appeals. He then appealed to SCOTUS.

The U.S. Supreme Court agreed with Lochner and struck down the Act's limitations on working hours as unconstitutional. While the Court acknowledged New York State's police power, or right to create laws to safeguard public health, they disagreed with New York State's exercise of police powers in this case.

The majority recognized "that the real object and purpose were simply to regulate the hours of labor between the master and his employees (all being men, Sui juris), in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employees."

The Court concluded that, under these circumstances, New York State could not restrict the ability of two parties to enter into a contract without violating the Federal Constitution.

The Court applied a rational basis test and found that New York State had no rational basis for enacting this law. Although neither the Constitution nor the Fourteenth Amendment addressed the right to contract, this is an example of the Court finding a right based on the Amendment's guarantee of liberty.

However, note that Ferguson v. Skrupa overruled Lochner in 1963.

West Coast Hotel Co. v Parrish

West Coast Hotel Co. v Parrish builds upon earlier cases that addressed fundamental rights under the Fourteenth Amendment. This case involved the constitutionality of a Washington State minimum wage law, Minimum Wages for Women, which regulated minimum wages for women and children. The law purported to protect women and children from labor conditions that negatively impacted their health and morals.

Elsie Parrish was a maid at the West Coast Hotel. She earned less than the minimum wage and sued the hotel under the Minimum Wage Act in the trial court. The trial court sided with the hotel, and Parrish appealed to the Washington Supreme Court, which overruled their decision. West Coast Hotel appealed to the Supreme Court.

The narrow issue before the Court was the constitutional validity of the Minimum Wages for Women Act. The Court upheld this law, recognizing that the state can use police powers to restrict freedom of contract.

Poe v. Ullman

Poe v. Ullman is notable not for its holding but for Justice Harlan's dissent. In Poe, the plaintiffs sued the State of Connecticut over a Connecticut law banning contraceptives. The Poe plaintiffs challenged the constitutionality of this law under the Fourteenth Amendment, seeking a judgment declaring the law unconstitutional.

The plaintiffs lost in the Connecticut Superior Court, and the Connecticut Supreme Court of Errors affirmed their decision. The plaintiffs then appealed to the SCOTUS, which dismissed the case. They believed it was not "justiciable" or appropriate for adjudication because none of the plaintiffs sustained any injury.

Justice Harlan dissented from the majority opinion. He believed the Connecticut law violated the Fourteenth Amendment because it was "an intolerable and unjustifiable invasion of privacy in the most intimate concerns of an individual's personal life." He also noted that:

"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions, it has represented the balance that our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society."

One big takeaway from Justice Harlan's dissent is the idea of a right to privacy under the Fourteenth Amendment. Although the Amendment does not mention this right, subsequent Supreme Court cases identified it.

Griswold v. Connecticut

The Supreme Court revisited the 1879 Connecticut Statute outlawing contraception in Griswold v Connecticut. This law not only banned the use of contraception, but it also prohibited physicians from giving medical advice about contraceptives.

Estelle Griswold of the Planned Parenthood League and C. Lee Buxton, a physician, opened a Planned Parenthood Center in New Haven, Connecticut. They advised married women on the use of contraceptives and also prescribed contraceptives. They were arrested ten days after the Center opened for violating the 1879 Connecticut Statute. They were subsequently arrested and then convicted for violating this law.

They appealed to the Appellate Division of the Circuit Court and the Connecticut Supreme Court of Errors. Both Courts affirmed the original conviction. They then appealed to the Supreme Court of the United States.

The Supreme Court ruled in favor of the plaintiffs, holding that the Connecticut prohibiting the use of contraceptives "unconstitutionally intrudes upon the right of marital privacy. This case is built upon Poe's recognition of the right to marital privacy. This right is not explicit in the Constitution, but the Court drew on other Amendments in arriving at its holding. They noted that the Bill of Rights contained a series of "guarantees" that gave rise to other rights. They observed that these "guarantees" created "zones of privacy."

For example, the First Amendment gives rise to the right of association. The Fourth Amendment created a zone of privacy against unreasonable search and seizure. In their view, the Fifth Amendment gave rise to creating a zone of privacy wherein the government cannot force anyone to surrender to their detriment.

Roe v. Wade

Although the Supreme Court overturned Roe v. Wade with its 2022 ruling in Dobbs v. Jackson, we can glean essential principles from the case. Roe v. Wade did more than grant the right to get an abortion. In many ways, Roe stands for the proposition that we each have a right to privacy in our bodies.

At that time, the State of Texas had a law prohibiting abortions unless it was necessary to save the mother's life. Jane Roe, a Texas citizen, sued the State of Texas to challenge the constitutionality of this law.

The Court found in favor of Roe, identifying a fundamental right to privacy and protecting a person's right to have an abortion. Notably, the Court ultimately also determined that the right to abortion was not absolute. It recognizes the state's interest in protecting health and prenatal health and the need to balance this interest against the right to an abortion.

Washington v. Glucksberg

Washington v. Glucksberg is a 1997 Supreme Court case about the constitutionality of assisted suicide. At that time, Washington State had a law that banned physician-assisted suicide.

Dr. Harold Glucksberg, together with a few other physicians, challenged the constitutionality of this law. They won at the District Court and the Ninth Circuit Court of Appeals. Washington State appealed to the Supreme Court, which granted them certiorari.

The Court reversed the lower court's decisions, finding that the right to assisted suicide is not a fundamental right protected by the Fourteenth Amendment's due process clause. The Court then applied the rational basis test and determined that Washington's interest in preserving human life outweighed any possible right under the Fourteenth Amendment.

Obergefell v. Hodges

In Obergefell v. Hodges (2015), the Court recognized the right to marry as a fundamental right. In Obergefell, the Court consolidated several marriage rights cases. In each case, the plaintiffs sued their respective states to challenge the constitutionality of each state's ban on same-sex marriages. They believed these bans violated their rights under the due process clauses of the Fifth and Fourteenth Amendments.

The Supreme Court agreed, finding that the Fourteenth Amendment did protect their right to marry. The Court held as follows:

"The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same sex may not be deprived of that right and that liberty.."

Once again, the Court relies on the Fourteenth Amendment's due process clause, which guarantees a right to life, liberty, and property. The Court recognized the inherent contradiction between identifying the right to privacy in other family life issues and "not for the decision to enter into the relationship that is the foundation to the family in our society.

The Incorporation Doctrine

Incorporation is the principle that allows the Court to incorporate the Bill of Rights into the Fourteenth Amendment. Consider, for example, the right to privacy. It is not mentioned in the Bill of Rights or the Fourteenth Amendment, yet it is a right the Court has consistently recognized. This is because of the guarantees of life, liberty, and property found in the Fourteenth Amendment.

The Court has incorporated the Eighth Amendment in Timbs v. Indiana and the Sixth Amendment in Ramos v. Louisiana.

There are two types of incorporation. The first is total incorporation, which occurs when the Court applies all of the guarantees in the Bill of Rights to the states under the Fourteenth Amendment. However, total incorporation has never been adopted by the majority in a Supreme Court decision.

In contrast, selective incorporation occurs when rights guaranteed by the first eight amendments to the U.S. Constitution that are fundamental to and implicit in the concept of ordered liberty are incorporated into the Fourteenth Amendment's due process clause.

Through the Fourteenth Amendment's due process clause, the Court has carved out rights not enumerated in the Bill of Rights and progressively advanced American society.

Was this helpful?

More On the Constitution

Learn about the most important legal document in the United States.

Read more >