Due process is a legal concept that places limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice, and liberty. The legal systems of most nations embrace some variant of this, such as the concept of fundamental justice in Canada.

International Due Process

Many nations recognize some form of due process under customary international law as well. Though the specifics are not clear, there has been general consensus that a nation must guarantee foreign visitors a basic minimum level of justice and fairness. Some nations argued that they were bound to grant no more rights to aliens than they did to their own citizens. With the growth of international human rights law and the frequent use of treaties to govern handling of nationals abroad, the distinction in practice between these two perspectives has all but disappeared.

Due Process in the United States

The Fifth Amendment contains a guarantee of basic due process applicable only to actions of the federal government--"No person shall be...deprived of life, liberty, or property, without due process of law..." The 14th Amendment contains the same verbage expressly applied to the States. The Supreme Court has decided to interpret the two clauses identically, so under the federal Constitution, there is no difference in protection from federal or State action. However, State constitutions also have their own guarantees of due process that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to individuals than under federal law.

Due Process under the federal Constitution is interpreted to have both procedural and substantive components, meaning that it imposes restrictions not only on legal process--the ways in which laws may operate--but on legal substance--what laws may attempt to do or prohibit. The distinction between substance and procedure is difficult in both theory and practice to establish.

Procedural Due Process

Procedural due process as a bare minimum includes an individual's right to be adequately notified of charges or proceedings involving him, and the opportunity to be heard at these proceedings.

Criminal prosecutions and civil cases are governed by explicit guarantees of rights under the Bill of Rights and as incorporated under the Fourteenth to the States (see below). However, when the Constitution has not laid out the specific procedures that must be followed in other government proceedings, due process provides a minumum floor of protection to the individual that statutes, regulations, and enforcement actions must at least meet (but can exceed), to ensure that no one is deprived of life, liberty, or property arbitrarily and without opportunity to affect the judgment or result. This minimum protection extends to all government proceedings that can result in an individual's deprivation, from parole violation hearings to even administrative hearings regarding government benefits and entitlements.


The main articles of the Constitution as well as the other amendments in the Bill of Rights contain many specific procedural guarantees that go beyond minimal due process, particularly in the context of criminal prosecution (see bottom of article for complete list). The Bill of Rights was originally written to limit only the federal government. However, the Supreme Court has ruled that most of its guarantees are either part of the "privileges and immunities" of federal citizenship or a necessary part of liberty and due process (see substantive due process below), and so have been incorporated by the Fourteenth Amendment's due process clause so as to also apply equally to the States. The exceptions are the Fifth Amendment right to an indictment by a grand jury and the Seventh Amendment right to civil jury trial, which have been ruled to only apply in federal courts.

Incorporation has applied most of the substantive rights of the Bill of Rights to the States as well. The doctrine of incorporation is the only legal reason why, for example, States must recognize the freedom of speech or religion regardless of whether their own State laws and constitutions offer comparable protections. The only exceptions to incorporation of the substantive rights in the Bill of Rights--the Second Amendment right to bear arms, the Third Amendment right not to have soldiers quartered in one’s home, and the Eighth Amendment prohibition on excessive bail and fines--are provisions that the Supreme Court has not definitively ruled on. Many Circuit Courts have ruled that these rights have been incorporated, however.

Substantive Due Process

Though on its face, the idea that due process is not only procedural but substantive seems paradoxical, the boundary between substance and procedure is in fact far from exact. The Supreme Court has held for most of its history that due process must include limits not only on how laws are passed or enforced, but on what kind of laws may be imposed by majorities upon minorities and individuals. The court has consistently viewed the due process clause as embracing those rights that are "implicit in ordered liberty." Just what these rights are is not always clear. Throughout the court's history, substantive due process has protected such uncontroversial rights as marriage and raising children, and the extension of much of the Bill of Rights over the States. However, what are seen as past abuses and present excesses of this doctrine continue to spur debate over its use.

The idea of substantive due process is loosely descended from the Magna Carta. Following the Magna Carta's promulgation, judges found they had the power to overrule laws and judgments at odds with the law of the land. This was to some extent an outgrowth of the common law's philosophical reliance on natural law and the western idea that some laws could be "unlawful."

Substantive due process has a checkered past in the U.S., as it was first applied by the Supreme Court in the infamous Dred Scott v. Sandford. Dred Scott was a slave who claimed that passing through territory in which slavery was prohibited destroyed his owner's property rights over him. However, the Supreme Court held that due process protections of property restricted certain types of laws that would take away property, not merely the procedure by which it was taken. After the Fourteenth Amendment applied due process restrictions to states, the Supreme Court used it to find a freedom of contract to routinely strike down economic and labor regulations, as in Lochner v. New York.

As judges became more deferential to legislative judgment in the area of commerce, substantive due process shifted away from upholding laissez faire economics to recognizing individual rights. This has included the Incorporation of most of the Bill of Rights under the Fourteenth to apply to the laws and actions of States, as well as the recognition of rights concerning family and privacy not elsewhere in the text of the Constitution, but still considered integral to liberty. Substantive due process has notably been invoked to invalidate restrictive laws in such areas as contraceptives in Griswold v. Connecticut and abortion in Roe v. Wade, and most recently in Lawrence v. Texas regarding the rights of homosexuals to sexual intimacy.

The same criticisms of the doctrine continue as in the past--that justices are reading their personal views into the Constitution instead of interpreting it. However, the disagreements are much more concerned with what, based on tradition and history, should be embraced under such protections of liberty rather than whether there are such unspoken guarantees in the Constitution. In other words, the main debate over substantive due process is simply where to apply it, not whether it should be applied at all.

Explicit Procedural Guarantees in the U.S. Constitution

  • Article One, Section 9:
    • the right to writs of habeas corpus, except during rebellion or invasion
    • the prohibition of bills of attainder (conviction and sentencing for a crime, typically treason, by a legislative act)
    • the prohibition of ex post facto laws (punishing acts not crimes at the time they were committed)
  • The 5th Amendment:
    • the right to a grand jury indictment in federal court, in capital and other "infamous" cases, except for members of the armed forces
    • the prohibition of double jeopardy (prosecuting someone again for a crime of which they have already been acquitted)
    • the right to not commit self-incrimination
    • the right to due process of law for life, liberty, and property (as enforced against the federal government)
    • the prohibition of taking private property for public use without just compensation (eminent domain is taking with compensation)
  • The 6th Amendment:
    • in all criminal prosecutions:
      • the right to a speedy and public trial
      • the right to an impartial jury of one's peers
      • the right to know the charges and evidence
      • the right to confront and cross-examine opposing witnesses
      • the right to compel witnesses to appear
      • the right to counsel
  • The 7th Amendment:
    • in civil trials in federal courts:
      • the right to a jury in civil trials
      • the guarantee that issues determined by a jury will not be redetermined by other courts in a manner contrary to the common law
  • The 14th Amendment, Section 1:
    • the right to due process of law regarding life, liberty, and property (as enforced against State governments)