Due Process

The Due Process Clause is included in both the Fifth and Fourteenth Amendments to the United States Constitution. The clause prohibits the government from depriving a person of their right to liberty or property without due process. This clause has helped the federal and state governments adopt fairness standards to ensure people’s rights are not violated. When the justice system fails to treat a person accused of a crime in a fair manner, this treatment violates the person’s rights to Due Process. To explore this concept, consider the following Due Process Clause definition.

Definition of Due Process Clause


  1. Clause included in the Fifth and Fourteenth Amendments to the United States Constitution ensuring that no person is deprived of his life, liberty, or property without due process of law.


Proposed in 1788, Fourteenth Amendment ratified to include Due Process in 1868.

Adoption of the Due Process Clause

The subject of Due Process dates back to 1215 when King John of England issued clause 39 of the Magna Carta. During his rule, King John promised his people that they would not be stripped of their basic human rights. This English rule set the standards for due process in the United States and other countries around the world. James Madison drafted the Due Process Clause in 1788, after New York asked Congress to consider adding “due process language” to the U.S. Constitution. Madison made some changes to the language recommended by New York, and Congress adopted the Bill of Rights as part of the Constitution in 1791. In 1868, the Fourteenth amendment was ratified to include a Due Process Clause.

Types of Protection Provided by Due Process

Though some laws in certain jurisdictions have slightly different interpretations of individual rights, they all prevent the government from harming a person without following the specified procedures of the law. This is known as “due process.” The Due Process Clause provides four basic areas of protection, all of which are overseen by the U.S. Supreme Court:

  1. Substantive due process
  2. Procedural due process
  3. Prohibition against vague laws
  4. As a means to incorporate the Bill of Rights

Substantive Due Process

Substantive Due Process pertains to those rights not listed specifically in the U.S. Constitution, but which are recognized as an important part of an individual’s liberty. Substantive due process is often related to areas such as voting, minorities, and the rights of children. When determining whether the government has violated a person’s substantive due process rights, the judicial system first determines whether the issue at hand was a fundamental right.

Procedural Due Process

Procedural due process protects individuals during governmental proceedings, whether they are civil or criminal. Procedural due process also pertains to parole hearings, governmental benefit hearings, and full criminal trials. The rights afforded in this section include, but are not limited to:

  • The right to an unbiased trial
  • The right to be given notice of the proposed trial and the reason for it
  • The right of the individual to be aware of evidence against him
  • The right to cross-examine witnesses for the opposition
  • The right to present evidence and call witnesses
  • The right to be represented by counsel

Prohibition Against Vague Laws

The Due Process Clause protects citizens against laws that are too vague for the average person to understand. If the laws are written in such a manner that an ordinary person cannot determine whether the conduct is expressly prohibited, or that a punishment can be rendered if they carry out the conduct, the court can determine the law to be “void for vagueness.” This prohibition against vague laws ensures that the laws are understandable and that ignorance cannot be used as a defense in criminal offenses.

Incorporating Protections into the Bill of Rights

The Bill of Rights was originally intended to apply only to the federal government, but the ratification of the Fourteenth Amendment placed prohibitions on the actions of individual states as well. As time went on, the Supreme Court made a number of rulings that certain state laws or policies violated protections guaranteed by the Bill of Rights, thus “incorporating” those protections, applying them to all U.S. citizens.

Related Legal Terms and Issues

  • Fifth Amendment – The Fifth Amendment protects people from being tried for the same crime twice, and specifies that no person can be compelled to testify against himself.
  • Seventh Amendment – The Seventh Amendment ensures an individual’s specific right to a fair trial.
  • Fourteenth Amendment – The Fourteenth Amendment extends American citizenship to all people that are born or naturalized in the country.
  • Ratify – To sign or give consent making something such as a law or Amendment officially valid.