8.5 Fourteenth Amendment due process
9 min read•august 20, 2024
The Fourteenth Amendment's protects individuals from unfair government actions. It ensures and fair procedures when the government tries to take away life, liberty, or property.
Courts use different levels of scrutiny to evaluate due process claims. applies to fundamental rights, while is used for other government actions. The has extended many protections to state governments.
Due process clause
- The Due Process Clause is found in the Fifth and Fourteenth Amendments of the United States Constitution, providing fundamental protections for individuals against government actions
- Ensures that the government cannot deprive individuals of life, liberty, or property without due process of law
- Encompasses both , which protects certain fundamental rights, and , which requires fair procedures before the government can take action
Substantive due process
- Substantive due process is a principle that protects individuals from arbitrary or unreasonable government actions that infringe upon fundamental rights
- Courts apply different levels of scrutiny when evaluating substantive due process claims, depending on the nature of the right at issue
- Substantive due process has been used to protect rights such as privacy, , and the right to marry
Fundamental rights
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- Fundamental rights are those rights that are deeply rooted in the nation's history and tradition and are implicit in the concept of ordered liberty
- Examples of fundamental rights include the right to privacy, the right to marry, and the right to make decisions about family and childrearing
- When a fundamental right is at issue, courts apply strict scrutiny to determine whether the government action is constitutional
Strict scrutiny
- Strict scrutiny is the highest level of judicial review applied to government actions that infringe upon fundamental rights or discriminate based on suspect classifications (race, national origin, etc.)
- Under strict scrutiny, the government must demonstrate that the challenged action is narrowly tailored to achieve a compelling government interest
- The government bears the burden of proving that there are no less restrictive means available to achieve its objectives
Rational basis review
- Rational basis review is the default level of scrutiny applied to government actions that do not implicate fundamental rights or suspect classifications
- Under rational basis review, the government action is presumed to be constitutional if it is rationally related to a legitimate government interest
- The challenger bears the burden of proving that the government action is not rationally related to any conceivable legitimate interest
Procedural due process
- Procedural due process ensures that individuals are afforded fair procedures before the government can deprive them of life, liberty, or property
- The core elements of procedural due process include notice and an opportunity to be heard
- The specific procedures required may vary depending on the nature of the interest at stake and the circumstances of the case
Notice
- Notice is a fundamental requirement of procedural due process, ensuring that individuals are informed of the government action that may affect their interests
- Notice must be reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections
- Examples of sufficient notice include personal service, mail, and publication in a newspaper of general circulation
Opportunity to be heard
- The opportunity to be heard is another essential component of procedural due process, allowing individuals to present their case before an impartial decision-maker
- The nature and extent of the hearing required may vary depending on the circumstances, ranging from informal administrative proceedings to formal judicial hearings
- In some cases, a pre-deprivation hearing may be required, while in others, a post-deprivation hearing may suffice
Incorporation doctrine
- The incorporation doctrine is the process by which the Bill of Rights, originally applicable only to the federal government, has been applied to the states through the Fourteenth Amendment's Due Process Clause
- The Supreme Court has used two approaches to incorporation: and
- The incorporation doctrine has played a significant role in expanding the protections of the Bill of Rights to state and local government actions
Fundamental fairness
- The fundamental fairness approach to incorporation, used by the Supreme Court in the early 20th century, applied only those rights deemed essential to the concept of ordered liberty to the states
- Under this approach, the Court considered whether a particular right was necessary for fundamental fairness in the context of the specific case
- The fundamental fairness approach was criticized for being subjective and led to the adoption of the selective incorporation approach
Selective incorporation
- Selective incorporation is the modern approach to incorporating the Bill of Rights against the states, applied by the Supreme Court since the mid-20th century
- Under selective incorporation, the Court determines whether a particular right is fundamental to the American scheme of ordered liberty and, if so, applies it to the states in the same manner as it applies to the federal government
- Examples of rights that have been selectively incorporated include freedom of speech, freedom of religion, and the right to counsel in criminal cases
State action requirement
- The limits the application of the Fourteenth Amendment's Due Process Clause to actions taken by state and local governments, not private actors
- In general, private conduct, no matter how discriminatory or wrongful, does not violate the Constitution
- However, there are two main exceptions to the state action requirement: the and the
Public function exception
- The public function exception applies when a private entity performs a function that is traditionally and exclusively reserved for the state
- Examples of public functions include operating a town, holding elections, and running a prison
- When a private entity performs a public function, it is subject to the same constitutional limitations as the government
Entanglement exception
- The entanglement exception applies when the government is significantly involved in private conduct, either through encouragement, support, or close cooperation
- Factors considered in determining entanglement include government funding, regulation, and oversight of the private entity
- If the government is sufficiently entangled with the private conduct, the private entity's actions may be attributed to the state and subject to constitutional limitations
Void for vagueness
- The doctrine is a principle of due process that requires laws to be clear and precise, providing of prohibited conduct and preventing
- A law is unconstitutionally vague if it fails to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited or if it encourages arbitrary and discriminatory enforcement
- The void for vagueness doctrine is particularly important in the context of criminal laws, where the consequences of violation are most severe
Fair notice
- Fair notice is a key component of the void for vagueness doctrine, requiring laws to be sufficiently clear to allow individuals to understand what conduct is prohibited
- Laws must provide explicit standards to guide those who are subject to them and to prevent arbitrary or discriminatory enforcement
- Factors considered in determining whether a law provides fair notice include the common understanding of the terms used and the presence of statutory definitions
Arbitrary enforcement
- The prohibition on arbitrary enforcement is another essential aspect of the void for vagueness doctrine, ensuring that laws do not grant excessive discretion to law enforcement or other government officials
- Laws must provide clear guidelines for enforcement to prevent selective or discriminatory application
- If a law is so vague that it allows for arbitrary enforcement, it may be struck down as unconstitutional
Irrebuttable presumptions
- are legal rules that presume a fact to be true without allowing for individual consideration or rebuttal
- Under the Due Process Clause, irrebuttable presumptions may be unconstitutional if they infringe upon protected interests without providing an opportunity for individualized determination
- The Supreme Court has struck down irrebuttable presumptions in cases involving fundamental rights or protected interests, such as parental rights and eligibility for government benefits
Individualized consideration
- is a requirement under the Due Process Clause when irrebuttable presumptions implicate protected interests
- The government must provide an opportunity for individuals to present evidence and arguments challenging the presumption as applied to their specific circumstances
- Individualized consideration ensures that the government does not deprive individuals of protected interests based on generalized assumptions or stereotypes
Protected liberty interests
- are those interests that are afforded procedural due process protection under the Fourteenth Amendment
- These interests include fundamental rights, such as privacy and family autonomy, as well as certain state-created liberty interests
- When the government seeks to deprive an individual of a protected liberty interest, it must provide appropriate procedural safeguards
Privacy rights
- are protected liberty interests under the Due Process Clause, encompassing various aspects of personal autonomy and decision-making
- The Supreme Court has recognized privacy rights in contexts such as contraception, abortion, and same-sex relationships
- Government actions that infringe upon privacy rights are subject to heightened scrutiny and must be justified by a compelling state interest
Family autonomy
- Family autonomy is another protected liberty interest, encompassing the right of parents to make decisions concerning the care, custody, and control of their children
- The Supreme Court has recognized the fundamental right of parents to direct the upbringing and education of their children
- Government actions that interfere with family autonomy must be narrowly tailored to serve a compelling state interest, such as protecting children from abuse or neglect
Protected property interests
- are those interests that are afforded procedural due process protection under the Fourteenth Amendment
- These interests include traditional forms of property, such as real estate and personal possessions, as well as certain state-created property interests
- When the government seeks to deprive an individual of a protected property interest, it must provide appropriate procedural safeguards
Entitlements vs privileges
- The distinction between entitlements and privileges is important in determining whether a property interest is protected under the Due Process Clause
- Entitlements are interests that an individual has a legitimate claim of entitlement to, often based on state law or contractual arrangements (welfare benefits, government employment)
- Privileges are interests that are granted at the discretion of the government and may be revoked without procedural due process (licenses, permits)
Mathews v. Eldridge balancing test
- The is a framework used by courts to determine the specific procedural safeguards required under the Due Process Clause when the government seeks to deprive an individual of a protected interest
- The test involves balancing three factors: the affected, the and the probable value of additional safeguards, and the government's interests
- The Mathews test is flexible and context-specific, allowing courts to tailor procedural requirements to the particular circumstances of each case
Private interests
- The first factor in the Mathews test is the private interest that will be affected by the government action
- Courts consider the nature and importance of the interest at stake, such as the severity of the deprivation and the duration of the impact
- Examples of significant private interests include the loss of welfare benefits, government employment, or professional licenses
Risk of erroneous deprivation
- The second factor in the Mathews test is the risk of erroneous deprivation of the private interest through the procedures used and the probable value of additional or substitute procedural safeguards
- Courts assess the likelihood that the existing procedures may lead to inaccurate or mistaken deprivations and whether additional safeguards could reduce that risk
- Examples of additional safeguards include pre-deprivation hearings, the right to present evidence and cross-examine witnesses, and the right to counsel
Government interests
- The third factor in the Mathews test is the government's interest, including the function involved and the fiscal and administrative burdens that additional procedural requirements would entail
- Courts consider the government's legitimate interests in efficiently administering programs and preserving scarce public resources
- The government's interests are weighed against the private interests and the risk of erroneous deprivation to determine the appropriate level of procedural safeguards
Key Terms to Review (31)
Arbitrary enforcement: Arbitrary enforcement refers to the inconsistent and subjective application of laws or regulations by authorities, often leading to unequal treatment of individuals. This concept is particularly significant in understanding how due process is affected when individuals are subjected to law enforcement practices that lack fairness and consistency, potentially violating constitutional rights.
Bill of Rights: The Bill of Rights is the first ten amendments to the United States Constitution, designed to protect individual liberties and rights against government infringement. It ensures essential freedoms such as speech, religion, and assembly, and includes protections in legal proceedings that are crucial for maintaining justice and fairness in the legal system.
Due process clause: The due process clause is a constitutional provision that guarantees individuals fair treatment through the judicial system and protects against arbitrary denial of life, liberty, or property. Found in both the Fifth and Fourteenth Amendments, it ensures that laws and legal proceedings are conducted fairly, providing essential rights such as the right to a fair trial, notice of charges, and an opportunity to be heard.
Eighth Amendment: The Eighth Amendment is a part of the United States Constitution that prohibits excessive bail, excessive fines, and cruel and unusual punishments. This amendment is crucial for protecting individual rights and limiting government power in the penal system, influencing various legal interpretations regarding punishments and the justice system as a whole.
Entanglement Exception: The entanglement exception is a legal doctrine in U.S. constitutional law that addresses situations where government involvement with religious institutions does not violate the Establishment Clause of the First Amendment, due to the complex interactions between the state and religious entities. This exception permits certain forms of government aid to religious organizations if the assistance does not result in an excessive entanglement with religion, thus balancing the separation of church and state while ensuring the protection of individual rights.
Entitlements vs Privileges: Entitlements are rights or benefits that are guaranteed by law or policy, while privileges are special advantages granted to individuals that can be revoked or limited. This distinction is crucial in understanding how individuals and groups access certain rights and benefits under the law, especially when evaluating fairness and equality in the application of legal standards.
Fair notice: Fair notice refers to the legal principle that individuals should have a clear understanding of what constitutes prohibited conduct under the law. This concept is tied to the idea that laws must be sufficiently clear and definite so that ordinary people can understand what is expected of them. In the context of due process, fair notice ensures that individuals are not subjected to arbitrary enforcement of laws and that they have adequate warning about what behaviors may lead to legal consequences.
Family autonomy: Family autonomy refers to the right of families to govern themselves and make decisions about their own lives without undue interference from the state or other outside forces. This concept emphasizes the importance of personal choice and family integrity in matters such as child-rearing, education, and family structure, highlighting the role of familial relationships as fundamental to individual identity and social organization.
Fifth Amendment: The Fifth Amendment is part of the United States Constitution that provides several protections for individuals, including the right against self-incrimination, protection against double jeopardy, and the guarantee of due process. It plays a critical role in ensuring fairness within the legal system, connecting to broader principles of due process and the handling of pretrial proceedings.
Fundamental fairness: Fundamental fairness refers to the constitutional guarantee that legal proceedings will be conducted in a just and equitable manner, ensuring that all individuals receive fair treatment under the law. This concept is deeply rooted in the notion of due process, particularly as it relates to the Fourteenth Amendment, which protects individuals from arbitrary deprivation of life, liberty, or property without proper legal procedures.
Fundamental rights: Fundamental rights are basic human rights that are recognized and protected by law, ensuring individual freedoms and equal treatment. These rights are essential to the concept of justice and equality, often enshrined in constitutions, and are particularly relevant in the context of due process under the Fourteenth Amendment, which guarantees that no state shall deprive any person of life, liberty, or property without due process of law.
Government interests: Government interests refer to the various objectives and purposes that a government seeks to achieve, often justifying the implementation of laws and regulations. These interests can include protecting public safety, promoting health, preserving order, and safeguarding individual rights. In the context of the Fourteenth Amendment due process, government interests are weighed against individual rights to ensure that laws are not overly broad or infringing on fundamental freedoms.
Incorporation doctrine: The incorporation doctrine is a constitutional legal concept that ensures that the protections guaranteed by the Bill of Rights are applicable to the states through the Fourteenth Amendment's Due Process Clause. This principle has been crucial in applying federal rights at the state level, making it clear that states cannot infringe upon fundamental rights such as freedom of speech or protection against unreasonable searches and seizures. Through this doctrine, individual liberties are protected against state actions as much as they are against federal actions.
Individualized consideration: Individualized consideration refers to the practice of evaluating and addressing the unique circumstances and needs of each individual, particularly in the context of legal rights and due process. This principle emphasizes that each person's situation should be considered on its own merits, ensuring fairness and justice in legal proceedings. It plays a critical role in shaping how laws are applied, especially when determining the appropriate level of legal protection for individuals.
Irrebuttable Presumptions: Irrebuttable presumptions are legal assumptions that cannot be contradicted or disproven by evidence, establishing certain facts as true in legal proceedings. These presumptions often arise from statutory law or judicial decisions and play a crucial role in upholding rights and enforcing legal principles, particularly under the Fourteenth Amendment's due process protections.
Justice Hugo Black: Justice Hugo Black was an influential Associate Justice of the United States Supreme Court, serving from 1937 to 1971. Appointed by President Franklin D. Roosevelt, Black was known for his strong advocacy of civil liberties and his interpretation of the Constitution, particularly in relation to the Fourteenth Amendment and its due process clause. His judicial philosophy emphasized individual rights and the protection of freedoms against governmental infringement.
Justice William Brennan: Justice William Brennan was an influential Associate Justice of the United States Supreme Court, serving from 1956 to 1990. He is best known for his strong advocacy for civil rights and liberties, particularly in the context of the Fourteenth Amendment's due process clause, which he interpreted broadly to protect individual freedoms against government infringement.
Mathews v. Eldridge Balancing Test: The Mathews v. Eldridge balancing test is a legal standard used by courts to determine whether an individual’s due process rights have been violated, especially in the context of administrative actions. It weighs three key factors: the private interest affected, the risk of an erroneous deprivation of that interest, and the governmental interest involved in the procedure being challenged. This test is significant in ensuring that individuals receive fair treatment before the government deprives them of life, liberty, or property.
Privacy rights: Privacy rights refer to the fundamental human right that individuals have to control their personal information and maintain a level of confidentiality in their lives. This concept is closely connected to the Fourteenth Amendment's due process clause, which protects individuals from arbitrary interference by the state in their private affairs, ensuring that government actions respect personal autonomy and dignity.
Private interests: Private interests refer to the personal or individual benefits and rights that individuals seek to protect and pursue within legal frameworks. In the context of the Fourteenth Amendment due process, private interests often concern the rights of individuals against government actions that may infringe upon their liberties or property without fair legal processes. This protection ensures that individuals have a legitimate claim to their private affairs and are not subject to arbitrary state action.
Procedural due process: Procedural due process is a constitutional principle that ensures fair treatment through the judicial system and mandates that legal proceedings be conducted with appropriate procedures. This principle is rooted in the Fourteenth Amendment, which prohibits states from depriving individuals of life, liberty, or property without adequate legal protections. It emphasizes the need for notice, a hearing, and an impartial tribunal, ensuring that individuals have a chance to defend themselves before being deprived of their rights.
Protected liberty interests: Protected liberty interests are fundamental rights or freedoms that individuals possess under the law, specifically those that are safeguarded by the Due Process Clause of the Fourteenth Amendment. These interests can include personal freedoms such as the right to marry, the right to raise children, and the right to privacy. They serve as a check against arbitrary government actions that could infringe upon these essential rights.
Protected property interests: Protected property interests refer to the legal rights that individuals have in their property, which are safeguarded against arbitrary deprivation by the government. These interests are crucial in ensuring that any governmental action affecting property must comply with the requirements of due process under the law, especially as outlined in the Fourteenth Amendment. This concept emphasizes the need for fair procedures before a person's property can be taken away or significantly altered.
Public function exception: The public function exception refers to a legal doctrine that allows certain private actions to be considered state actions when they involve a public function or are closely linked to government operations. This concept is significant in determining the scope of state action under the Fourteenth Amendment, particularly concerning due process and equal protection rights. By recognizing private entities performing public functions as state actors, the public function exception helps ensure that individuals' constitutional rights are upheld even in non-governmental settings.
Rational Basis Review: Rational basis review is a standard of judicial review used by courts to evaluate laws and government actions that do not involve fundamental rights or suspect classifications. Under this review, a law is upheld if it is rationally related to a legitimate government interest, making it the lowest level of scrutiny in constitutional law. This means that the government does not have to provide compelling reasons for the law, just that there is some reasonable justification behind it.
Risk of Erroneous Deprivation: The risk of erroneous deprivation refers to the possibility that a person's rights or interests may be unfairly taken away or diminished without appropriate legal procedures or justifications. This concept is particularly important in the context of due process, as it highlights the potential for mistakes and injustices in legal proceedings, emphasizing the need for fair and adequate protections to prevent wrongful outcomes.
Selective Incorporation: Selective incorporation is a constitutional doctrine that ensures that certain fundamental rights guaranteed by the Bill of Rights are applied to the states through the Fourteenth Amendment's Due Process Clause. This process allows for specific rights to be incorporated gradually, protecting citizens from state laws that infringe upon their fundamental liberties, rather than applying all rights uniformly to the states at once. The concept emphasizes the importance of protecting individual freedoms at both federal and state levels.
State action requirement: The state action requirement is a legal principle stating that constitutional protections, particularly those found in the Fourteenth Amendment, apply only to actions taken by government entities and not to private individuals or organizations. This principle is crucial because it establishes that for an individual to invoke constitutional rights, they must demonstrate that their rights were violated by state or governmental actions rather than private conduct. It connects deeply to the idea of ensuring that the government is held accountable for its actions that infringe upon individual liberties.
Strict scrutiny: Strict scrutiny is the highest standard of judicial review used by courts to evaluate laws or governmental actions that infringe upon constitutional rights, particularly those protected under the Fourteenth Amendment. Under this standard, the government must show that the challenged law serves a compelling governmental interest and that the law is narrowly tailored to achieve that interest. This rigorous review often applies to cases involving fundamental rights and suspect classifications, such as race or national origin.
Substantive Due Process: Substantive due process is a constitutional doctrine that protects certain fundamental rights from government interference, ensuring that laws do not infringe on basic liberties. This concept is rooted in the Fourteenth Amendment, which guarantees that no state shall deprive any person of life, liberty, or property without due process of law. It emphasizes the importance of fairness in governmental actions and seeks to protect individual rights against arbitrary state actions.
Void for vagueness: Void for vagueness is a legal doctrine that holds a law or regulation unconstitutional if it is so unclear or ambiguous that individuals cannot reasonably understand what behavior is prohibited or required. This concept is essential to ensure that laws provide fair notice and do not lead to arbitrary enforcement, particularly in relation to the protections afforded by due process under the Fourteenth Amendment.