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Fifth Amendment Due Process

The Fifth Amendment provides a framework for both criminal and civil legal proceedings. It protects a person from being forced to testify against themselves, the right to an attorney, and more. One important aspect of the Fifth Amendment is known as “due process,” or the requirement that the government cannot deprive a person of their freedom or property without going through the court system. Fifth Amendment due process is separate from, although similar to, due process under the Fourteenth Amendment. Find out more below.

What the Fifth Amendment Says About Due Process

“No person shall…be deprived of life, liberty, or property, without due process of law;"

What It Means

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

Standing by itself, the phrase due process would seem to refer solely and simply to procedure, to process in court, and therefore to be so limited that due process of law would be what the legislative branch enacted it to be. But that is not the interpretation that has been placed on the term. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will.1 All persons within the territory of the United States are entitled to its protection, including corporations,2 aliens,3 and presumptively citizens seeking readmission to the United States,4 but States as such are not so entitled.5 It is effective in the District of Columbia6 and in territories which are part of the United States,7 but it does not apply of its own force to unincorporated territories.8 Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.9

Early in our judicial history, a number of jurists attempted to formulate a theory of natural rights—natural justice, which would limit the power of government, especially with regard to the property rights of persons.10 State courts were the arenas in which this struggle was carried out prior to the Civil War. Opposing the vested rights theory of protection of property were jurists who argued first, that the written constitution was the supreme law of the State and that judicial review could look only to that document in scrutinizing legislation and not to the unwritten law of natural rights, and second, that the police power of government enabled legislatures to regulate the use and holding of property in the public interest, subject only to the specific prohibitions of the written constitution. The vested rights jurists thus found in the law of the land and the due process clauses of the state constitutions a restriction upon the substantive content of legislation, which prohibited, regardless of the matter of procedure, a certain kind or degree of exertion of legislative power altogether.11 Thus, Chief Justice Taney was not innovating when, in the Dred Scott case, he pronounced, without elaboration, that one of the reasons that the Missouri Compromise was unconstitutional was that an act of Congress that deprived a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.12. Following the war, with the ratification of the Fourteenth Amendment’s Due Process Clause, substantive due process interpretations were urged on the Supreme Court with regard to state legislation. First resisted, the arguments came in time to be accepted, and they imposed upon both federal and state legislation a firm judicial hand that was not to be removed until the crisis of the 1930s, and that today in non-economic legislation continues to be reasserted.

It may prevent confusion, and relief from repetition, if we point out that some of our cases arose under the provisions of the Fifth and others under those of the Fourteenth Amendment to the Constitution of the United States. Although the language of those Amendments is the same, yet as they were engrafted upon the Constitution at different times and in widely different circumstances of our national life, it may be that questions may arise in which different constructions and applications of their provisions may be proper.13 The most obvious difference between the two Due Process Clauses is that the Fifth Amendment clause as it binds the Federal Government coexists with other express provisions in the Bill of Rights guaranteeing fair procedure and non-arbitrary action, such as jury trials, grand jury indictments, and nonexcessive bail and fines, as well as just compensation, whereas the Fourteenth Amendment clause as it binds the states has been held to contain implicitly not only the standards of fairness and justness found within the Fifth Amendment’s clause but also to contain many guarantees that are expressly set out in the Bill of Rights. In that sense, the two clauses are not the same thing, but, insofar as they impose such implicit requirements of fair trials, fair hearings, and the like, which exist separately from, though they are informed by, express constitutional guarantees, the interpretation of the two clauses is substantially, if not wholly, the same. Save for areas in which the particularly national character of the Federal Government requires separate treatment, this book's discussion of the meaning of due process is largely reserved for the section on the Fourteenth Amendment. Finally, some Fourteenth Amendment interpretations have been carried back to broaden interpretations of the Fifth Amendment’s Due Process Clause, such as, for example, the development of equal protection standards as an aspect of Fifth Amendment due process.

Due process under the Fifth and Fourteenth Amendments can be broken down into two categories: procedural due process and substantive due process. Procedural due process, based on principles of fundamental fairness, addresses which legal procedures are required to be followed in state proceedings. Relevant issues, as discussed in detail below, include notice, the opportunity for hearing, confrontation and cross-examination, discovery, the basis of the decision, and availability of counsel. Substantive due process, although also based on principles of fundamental fairness, is used to evaluate whether a law can be applied by states at all, regardless of the procedure followed. Substantive due process has generally dealt with specific subject areas, such as liberty of contract or privacy, and over time has alternately emphasized the importance of economic and non-economic matters. In theory, the issues of procedural and substantive due process are closely related. In reality, substantive due process has had greater political import, as significant portions of a state legislature’s substantive jurisdiction can be restricted by its application.

Although the extent of the rights protected by substantive due process may be controversial, its theoretical basis is firmly established and forms the basis for much of modern constitutional case law. Passage of the Reconstruction Amendments (13th, 14th, and 15th) gave the federal courts the authority to intervene when a state threatened fundamental rights of its citizens,14 and one of the most important doctrines flowing from this is the application of the Bill of Rights to the states through the Due Process Clause.15 Through the process of selective incorporation, most of the provisions of the first eight Amendments, such as free speech, freedom of religion, and protection against unreasonable searches and seizures, are applied against the states as they are against the federal government. Though the application of these rights against the states is no longer controversial, the incorporation of other substantive rights, as is discussed in detail below, has been.

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Historical Background

“It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just.”16 The content of due process is a historical product17 that traces all the way back to chapter 39 of Magna Carta, in which King John promised that [n]o free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.18 The phrase due process of law first appeared in a statutory rendition of this chapter in 1354. No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.19 Though Magna Carta was in essence the result of a struggle over interest between the King and his barons,20 this particular clause over time transcended any such limitation of scope, and throughout the fourteenth-century parliamentary interpretation expanded far beyond the intention of any of its drafters.21 The understanding which the founders of the American constitutional system, and those who wrote the Due Process Clauses, brought to the subject they derived from Coke, who in his Second Institutes expounded the proposition that the term by law of the land was equivalent to due process of law, which he in turn defined as by due process of the common law, that is, by the indictment or presentment of good and lawful men . . . or by writ original of the Common Law.22 The significance of both terms was procedural, but there was in Coke’s writings on chapter 29 a rudimentary concept of substantive restrictions, which did not develop in England because of parliamentary supremacy, but which was to flower in the United States.

The term law of the land was early the preferred expression in colonial charters and declarations of rights, which gave way to the term due process of law, although some state constitutions continued to employ both terms. Whichever phraseology was used, the expression seems generally to have occurred in close association with precise safeguards of accused persons, but, as is true of the Fifth Amendment here under consideration, the provision also suggests some limitations on substance because of its association with the guarantee of just compensation upon the taking of private property for public use.23

Who Is Entitled to Due Process?

The Due Process Clause provides that no states shall deprive any person of life, liberty, or property without due process of law. A historical controversy has been waged concerning whether the framers of the Fourteenth Amendment intended the word person to mean only natural persons, or whether the word was substituted for the word citizen with a view to protecting corporations from oppressive state legislation.24 As early as the 1877 Granger Cases25 the Supreme Court upheld various regulatory state laws without raising any question as to whether a corporation could advance due process claims. Further, there is no doubt that a corporation may not be deprived of its property without due process of law.26 Although various decisions have held that the liberty guaranteed by the Fourteenth Amendment is the liberty of natural,27 not artificial, persons,28 nevertheless, in 1936, a newspaper corporation successfully objected that a state law deprived it of liberty of the press.29

A separate question is the ability of a government official to invoke the Due Process Clause to protect the interests of his office. Ordinarily, the mere official interest of a public officer, such as the interest in enforcing a law, has not been deemed adequate to enable him to challenge the constitutionality of a law under the Fourteenth Amendment.30 Similarly, municipal corporations have no standing to invoke the provisions of the Fourteenth Amendment in opposition to the will of their creator, the state.31 However, state officers are acknowledged to have an interest, despite their not having sustained any private damage, in resisting an endeavor to prevent the enforcement of statutes in relation to which they have official duties, and, accordingly, may apply to federal courts to review decisions of state courts declaring state statutes, which [they] seek to enforce, to be repugnant to the [Fourteenth Amendment of] the Federal Constitution.32

More on the Fifth Amendment


1.    Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1855). Webster had made the argument as counsel in Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819)See also Chief Justice Shaw’s opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857).

2.    Sinking Fund Cases, 99 U.S. 700, 719 (1878).

3.    Wong Wing v. United States, 163 U.S. 228, 238 (1896).

4.    United States v. Ju Toy, 198 U.S. 253, 263 (1905)cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927).

5.    South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966).

6.    Wight v. Davidson, 181 U.S. 371, 384 (1901).

7.    Lovato v. New Mexico, 242 U.S. 199, 201 (1916).

8.    Public Utility Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920).

9.    Johnson v. Eisentrager, 339 U.S. 763 (1950)In re Yamashita, 327 U.S. 1 (1946). Justices Rutledge and Murphy in the latter case argued that the Due Process Clause applies to every human being, including enemy belligerents.

10. Compare the remarks of Justices Chase and Iredell in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388–89, 398–99 (1798).

11. The full account is related in E. Corwin, Liberty Against Government ch. 3 (1948). The pathbreaking decision of the era was Wynhamer v. The People, 13 N.Y. 378 (1856).

12. Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1856).

13. French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).

14. The Privileges or Immunities Clause, more so than the Due Process Clause, appears at first glance to speak directly to the issue of state intrusions on substantive rights and privileges—No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . . See Akhil Reed Amar, The Bill of Rights 163–180 (1998). As discussed earlier, however, the Court limited the effectiveness of that clause soon after the ratification of the 14th Amendment. See Privileges or Immunities, supra. Instead, the Due Process Clause, though selective incorporation, became the basis for the Court to recognize important substantive rights against the states.

15. See Bill of Rights, Fourteenth Amendment, supra.

16. Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Justice Frankfurter dissenting). Due process is violated if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

17. Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).

18. Text and commentary on this chapter may be found in W. McKechnie, Magna Carta: A Commentary on the Great Charter of King John 375–95 (Glasgow, 2d rev. ed. 1914). The chapter became chapter 29 in the Third Reissue of Henry III in 1225. Id. at 504, 139–59. As expanded, it read: No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land. See also J. Holt, Magna Carta 226–29 (1965). The 1225 reissue also added to chapter 29 the language of chapter 40 of the original text: To no one will we sell, to no one will we deny or delay right or justice. This 1225 reissue became the standard text thereafter.

19. 28 Edw. III, c. 3. See F. Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629, 86–97 (1948), recounting several statutory reconfirmations. Note that the limitation of free man had given way to the all-inclusive delineation.

20. W. McKechnie, Magna Carta: A Commentary on the Great Charter of King John (Glasgow, 2d rev. ed. 1914); J. Holt, Magna Carta (1965).

21. F. Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629 (1948).

22. Sir Edward Coke, Institutes of the Laws of England, Part II, 50–51 (1641). For a review of the influence of Magna Carta and Coke on the colonies and the new nation, see, e.g., A. Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America (1968).

23. The 1776 Constitution of Maryland, for example, in its declaration of rights, used the language of Magna Carta including the law of the land phrase in a separate article, 3 F. Thorpe, The Federal and State Constitutions, H. Doc. No. 357, 59th Congress, 2d Sess. 1688 (1909), whereas Virginia used the clause in a section of guarantees of procedural rights in criminal cases. 7 id. at 3813. New York in its constitution of 1821 was the first state to pick up due process of law from the United States Constitution. 5 id. at 2648.

24. See Graham, The Conspiracy Theory of the Fourteenth Amendment, 47 Yale L. J. 371 (1938).

25. Munn v. Illinois, 94 U.S. 113 (1877). In a case arising under the Fifth Amendment, decided almost at the same time, the Court explicitly declared the United States equally with the States . . . are prohibited from depriving persons or corporations of property without due process of law. Sinking Fund Cases, 99 U.S. 700, 718–19 (1878).

26. 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).

27. As to the natural persons protected by the due process clause, these include all human beings regardless of race, color, or citizenship. 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).

28. Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906)Western Turf Ass’n v. Greenberg, 204 U.S. 359, 363 (1907)Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). Earlier, in Northern Securities Co. v. United States, 193 U.S. 197, 362 (1904), a case interpreting the federal antitrust law, Justice Brewer, in a concurring opinion, had declared that a corporation . . . is not endowed with the inalienable rights of a natural person.

29. Grosjean v. American 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 (reserving question). But see id. at 809, 822 (Justices White and Rehnquist dissenting) (corporations as creatures of the state have the rights state gives them).

30. Pennie v. Reis, 132 U.S. 464 (1889)Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548 (1900)Tyler v. Judges of Court 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).

31. 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 School 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).

32. Coleman v. Miller, 307 U.S. 433, 445, 442, 443 (1939); Boynton v. Hutchinson Gas Co., 291 U.S. 656 (1934); South Carolina Highway Dep’t v. Barnwell Bros., 303 U.S. 177 (1938). The converse is not true, however, and the interest of a state official in vindicating the Constitution gives him 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 County Court 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).


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