What is the Due Process Clause?

The Due Process Clause first appears in the Fifth Amendment, ratified December 15, 1791 as part of the Bill of Rights: 'nor shall [any person] be deprived of life, liberty, or property, without due process of law.' That clause applied only to the federal government; state governments were initially bound only by their own constitutions and common law. The 14th Amendment, ratified July 9, 1868, extended the identical protection to state action: 'nor shall any State deprive any person of life, liberty, or property, without due process of law.' The 14th Amendment clause became the textual vehicle for incorporating most of the Bill of Rights against the states -- when the Supreme Court holds that a guarantee such as the right to counsel (Gideon v. Wainwright, 372 U.S. 335 (1963)) or the prohibition on double jeopardy (Benton v. Maryland, 395 U.S. 784 (1969)) binds state and local governments, it does so by holding that the liberty protected by the 14th Amendment's Due Process Clause includes that specific right. The clause thus serves a dual function: it is both an independent source of procedural and substantive rights in its own terms, and the mechanism by which the Court has applied the Bill of Rights nationally. The three protected interests -- life, liberty, and property -- are not self-defining. A liberty interest includes more than freedom from physical restraint; it encompasses the right to engage in common occupations, acquire useful knowledge, marry, establish a home, bring up children, and worship according to conscience, as the Court explained in Meyer v. Nebraska, 262 U.S. 390 (1923). A property interest for due process purposes includes not only traditional real and personal property but also legitimate entitlements created by statute or regulation -- such as a government benefit that can be terminated only for cause -- as the Court held in Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).

Procedural due process governs the quality of procedures the government must provide before depriving a person of a protected interest. The foundational principle is that the government must give notice of the proposed action and a meaningful opportunity to be heard. The controlling framework is Mathews v. Eldridge, 424 U.S. 319 (1976), where the Supreme Court, in an opinion by Justice Lewis Powell, held that the Constitution does not always require a pre-termination hearing before the government discontinues disability benefit payments. The Court established a three-factor balancing test for determining what process is due in any given situation. First, the private interest that will be affected by the official action -- the importance of the interest to the individual. Second, the risk of an erroneous deprivation of such interest through the procedures currently used, and the probable value, if any, of additional or substitute procedural safeguards -- whether more procedures would reduce the chance of a wrong decision. Third, the government's interest, including the function involved and the fiscal and administrative burdens that additional procedure would entail. Applying this test, the Court held that the existing administrative review procedures for disability terminations -- which allowed the recipient to submit written evidence and a record review before termination, with a full evidentiary hearing available afterward -- adequately balanced these three factors. The Mathews test requires context-specific judgment rather than a single procedural floor; it has been applied to determine what process is due in cases involving public employee terminations, student disciplinary proceedings, parole revocation, welfare benefit terminations, and civil commitment. The specific procedures that satisfy due process in each context -- whether a full evidentiary hearing is needed, whether written submissions suffice, or whether some intermediate procedure satisfies the constitutional minimum -- depend on the Mathews balance in that particular setting.

Substantive due process holds that the Due Process Clause protects certain fundamental liberties from governmental deprivation regardless of the procedures used. This doctrine has a contested history. The Lochner era, named for Lochner v. New York, 198 U.S. 45 (1905), was a period from roughly the late 19th century through 1937 during which the Supreme Court invoked substantive due process to strike state and federal economic regulations as interferences with 'liberty of contract' -- a right the Court read into the clause without grounding it in the text's history. In Lochner itself, the Court struck 5-4, in an opinion by Justice Rufus Peckham, a New York law that set a maximum of 10 hours per day or 60 hours per week for bakers, holding that it was an unreasonable interference with the liberty of employers and employees to contract for the terms of their labor. Justice Oliver Wendell Holmes dissented, arguing that the Constitution was not intended to embody a particular economic theory. The Court ended the Lochner era in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), where Chief Justice Charles Evans Hughes, writing for a 5-4 majority, upheld Washington State's minimum wage law for women and explicitly repudiated the liberty-of-contract doctrine. The opinion reasoned that liberty under the Constitution is subject to the restraints of due process and that the regulation of working conditions was a reasonable exercise of the police power in light of the inequality of bargaining power between employers and workers. The shift came the same year that President Franklin D. Roosevelt proposed his court-packing plan, though historical evidence does not resolve whether 'the switch in time that saved nine' was caused by political pressure or reflected an independently reached change of judicial view. After 1937, the Court deferred to economic regulations under rational basis review rather than subjecting them to substantive due process scrutiny.

Modern substantive due process focuses on personal liberties rather than economic rights, and the controlling framework for recognizing a fundamental right is Washington v. Glucksberg, 521 U.S. 702 (1997). In Glucksberg, the Supreme Court, in a unanimous opinion by Chief Justice William Rehnquist, rejected a claimed fundamental right to physician-assisted suicide. The Court articulated a two-part test: a right qualifies as fundamental under substantive due process only if (1) it is 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty,' and (2) it is 'carefully described' -- the asserted liberty interest must be stated with specificity rather than at a high level of abstraction. The careful-description requirement was designed to prevent courts from defining rights broadly (e.g., 'liberty' or 'autonomy') in ways that import their own policy preferences into the constitutional text. The Court found no tradition of permitting assisted suicide, and refused to recognize it as a fundamental right. The Glucksberg test has governed substantive due process claims since, though its application in specific cases has produced significant disagreement. Obergefell v. Hodges, 576 U.S. 644 (2015), held 5-4, in an opinion by Justice Anthony Kennedy, that the Constitution's protection of liberty under the 14th Amendment includes the fundamental right to marry regardless of the sex of the parties. The majority also grounded the right in the Equal Protection Clause. Justice Kennedy's opinion acknowledged Glucksberg but argued that the right to marry had long been recognized as fundamental (Loving v. Virginia, 388 U.S. 1 (1967); Zablocki v. Redhail, 434 U.S. 374 (1978)) and that applying it to same-sex couples did not create a new right but extended an existing one. The four dissenters -- Chief Justice Roberts, and Justices Scalia, Thomas, and Alito -- argued the majority had effectively bypassed the careful-description requirement by describing the right at a high level of abstraction.

Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), is the most significant substantive due process decision in decades. The 6-3 majority opinion by Justice Samuel Alito overruled Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), holding that the Constitution does not confer a right to abortion. The majority applied Glucksberg rigorously: the right to abortion is not mentioned in the constitutional text, is not deeply rooted in the Nation's history and tradition -- at the time of the 14th Amendment's ratification in 1868, three-quarters of the states had statutes restricting abortion -- and is not implicit in the concept of ordered liberty. The majority rejected Casey's application of substantive due process, which had retained a right to abortion as a matter of stare decisis and applied an undue-burden standard. The Dobbs majority argued that stare decisis does not require preserving a precedent that is clearly wrong on constitutional grounds, particularly where the underlying doctrine was itself a departure from the normal interpretive method. Justice Clarence Thomas wrote separately to argue that the Court should also reconsider Griswold v. Connecticut, 381 U.S. 479 (1965) (contraception for married couples), Lawrence v. Texas, 539 U.S. 558 (2003) (same-sex intimate conduct), and Obergefell -- all of which rest on the same substantive due process methodology the Dobbs majority criticized. The majority opinion expressly stated it was addressing only abortion, but the Thomas concurrence made explicit the doctrinal tension between Dobbs and those precedents. For the 2028 presidential election, substantive due process doctrine is at the center of debates over abortion rights, reproductive liberty, privacy, and the scope of constitutional protection for personal autonomy -- debates that will be shaped by the appointments the 2028 winner makes to the federal judiciary and potentially the Supreme Court.

For the 2028 election, the Due Process Clause is one of the most directly contested constitutional provisions. On the procedural side, the Mathews v. Eldridge balancing test governs due process in administrative agency proceedings -- terminations of federal benefits, regulatory enforcement actions, and immigration hearings -- and the 2028 candidates hold different views about the adequacy of existing administrative procedures and whether executive action has satisfied due process in enforcement priorities. On the substantive side, the post-Dobbs landscape is the most immediate consequence: abortion is now a matter of state law, with some states banning or severely restricting it and others protecting or expanding access, and the 2028 presidential candidates have staked out positions ranging from support for a federal abortion ban to federal legislation protecting access. The 2028 winner will determine federal enforcement priorities, executive orders on medication access and interstate travel for abortion care, and -- most durably -- federal judicial appointments that will shape substantive due process doctrine for decades. Justice Thomas's Dobbs concurrence asking the Court to reconsider Griswold, Lawrence, and Obergefell has made those rights a live campaign issue in a way they were not before June 2022. The 2028 winner's first Supreme Court appointment -- which is possible if any of the current Justices retires or dies during the term beginning January 20, 2029 -- could shift the Court's composition and either entrench or soften the Dobbs methodology for applying Glucksberg's two-part test. The 5th Amendment's parallel due process guarantee also remains directly relevant to federal criminal prosecutions and to the rights of federal employees and benefit recipients; the Mathews balance governs each.