Constitutional Law

Of all the liberties protected by the Bill of Rights, none has been a greater source of constitutional litigation than DUE PROCESS. The Fifth Amendment provides that no person shall be deprived of "life, liberty, or property, without due process of law." The Supreme Court has interpreted this provision to regulate actions taken by only the federal government, not the state governments (BARRON V. BALTIMORE, 32 U.S. [7 Pet.] 243, 8 L. Ed. 672 [1833]).

Broadly speaking, the Due Process Clause of the Fifth Amendment guarantees litigants the right to be informed of any legal action being taken against them, and the opportunity to be heard during a fair proceeding in which they may assert relevant claims and defenses. Specifically, many procedural protections have been recognized by the Supreme Court as essential to the concept of due process. For example, in criminal cases, the Due Process Clause requires that the prosecution prove its case BEYOND A REASONABLE DOUBT before a conviction may be obtained. In civil cases, the Due Process Clause prohibits a court in one state from asserting jurisdiction over a resident in another state unless that resident has sufficient contacts with the jurisdiction in which that court sits.

The FOURTEENTH AMENDMENT also contains a Due Process Clause. Whereas the Due Process Clause of the Fifth Amendment regulates only the federal government, the Due Process Clause of the Fourteenth Amendment regulates actions taken by state governments. During the twentieth century, the Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to make most of the liberties enumerated in the Bill of Rights applicable to the states.

Through a series of decisions, the Supreme Court has ruled that certain liberties guaranteed in the Bill of Rights are too fundamental to be denied protection by the state governments. Only the right to bear arms, the right to be indicted by a grand jury, the right to a jury trial in civil cases, the right against excessive bail and fines, and the right against involuntary quartering of soldiers have not been made applicable to the states. Because these constitutional guarantees remain inapplicable to state governments, the Supreme Court is said to have selectively incorporated the Bill of Rights into the Due Process Clause of the Fourteenth Amendment.

The Supreme Court has interpreted the Due Process Clauses to have a substantive content in addition to their procedural content. Procedurally, due process prescribes the manner in which the government may deprive persons of their life, liberty, or property. In short, the procedural guarantees of due process entitle litigants to fair process.

Substantively, the Due Process Clauses of the Fifth and Fourteenth Amendments protect persons from legislation infringing on certain individual rights. Such individual rights may be expressly enumerated in a constitutional provision, as are the liberties that are enumerated in the Bill of Rights and have been incorporated into the Due Process Clause of the Fourteenth Amendment. Since DRED SCOTT V. SANDFORD, 60 U.S. (19 How.) 393, 15 L. Ed. 691 [1856]), where the Supreme Court recognized a slave owner's property interest in his slaves, the Due Process Clauses have been interpreted to protect other liberties that are not expressly enumerated in any provision of the federal Constitution.

These unenumerated rights have been derived from Supreme Court precedent, common law, history, and moral philosophy. Such rights, the Court said, "represent the very essence of ordered liberty" and embody "principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental" (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937]). Since the mid-1960s, the Supreme Court has relied on the concept of SUBSTANTIVE DUE PROCESS to establish a general right to privacy that protects a woman's decision to terminate her pregnancy under certain circumstances (ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]).