Due Process Explorer

The Fifth Amendment says no person shall "be deprived of life, liberty, or property, without due process of law." U.S. Constitution

The 14th Amendment's Due Process Clause bars any state from depriving a person of life, liberty or property without due process of law. U.S. Constitution

Before the government takes away a protected life, liberty or property interest, due process requires it to follow certain procedures first, which often means notice and an opportunity for a hearing. Constitution Annotated

The Supreme Court's test for civil cases, set in Mathews v. Eldridge (1976), weighs three factors: the private interest the government action affects; the risk that the procedures used will wrongly take that interest away, and the value of added or different safeguards; and the government's interest, including the function involved and the fiscal and administrative burdens that added procedures would bring. Constitution Annotated

The Constitution Annotated's 2024 supplement covers Supreme Court cases decided through July 1, 2024. Constitution Annotated

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Due Process Explorer

Pick who is acting and what is at stake, such as a benefit, a job, a license, a school suspension or immigration status. Each result shows which clause applies, what the Supreme Court has held about whether such interests are protected and what procedures it has required. Results cover the general rules and name key limits.

Question 1

Who is taking the action, or made the rule?

How to answer this

A landlord, employer, store, bank or other private business isn’t the government: choose the private answer. Otherwise, choose the government whose officers arrested you, or whose office made the decision or sent the notice.

A utility owned by a city or county counts as local government.

A privately owned utility cutting off a customer's service was not state action, even though the state regulated it, gave it what amounted to a monopoly and had in effect approved its shutoff rule (Jackson v. Metropolitan Edison Co., 1974). Constitution Annotated

The Fifth Amendment's Due Process Clause limits the federal government, and the Supreme Court reads the 14th Amendment's Due Process Clause to impose the same limits on the states. Both have procedural and substantive parts. Constitution Annotated

An official who uses a public position under a state government to take away life, liberty or property without due process acts for the state. The Supreme Court has applied these limits to state and local action alike, including city ordinances. Constitution Annotated

The 14th Amendment limits governments, not private parties: the Supreme Court has said it "erects no shield against merely private conduct, however discriminatory or wrongful." The same "state action" rule applies to the federal government. Constitution Annotated

Leading Supreme Court due process cases, and their limits
What is at stakeWhat the court held
Welfare benefits endingIn Goldberg v. Kelly (1970), the Supreme Court held that the government must provide an evidentiary hearing before ending welfare benefits, because ending them may take away an eligible person's means of living. Welfare benefits are a "statutory entitlement" for people who qualify. These protections cover procedure only. Congress or a state legislature can still cut or end a benefit itself. Constitution Annotated
Social Security disability benefits endingSocial Security disability benefits could be cut off before a hearing, as long as a hearing followed with full back benefits if the person won, the Supreme Court held in Mathews v. Eldridge (1976). The court reasoned that disability benefits aren't based on financial need, a person cut off could apply for welfare, the decisions more often turn on routine evaluations of data, and hearings beforehand would be costly. Constitution Annotated
A government jobIn Board of Regents v. Roth (1972), a public university's decision not to renew a teacher's one-year contract required no due process, because nothing in its contract, rules or policies created a claim to be rehired. But a professor who had worked several years at a public college had a protected interest even without a tenure contract, because the college's rules and understandings worked like tenure (Perry v. Sindermann, 1972). Applying the Mathews test to government jobs, the Supreme Court held that due process requires some notice and a chance to respond before firing, followed by a full hearing afterward, with back pay if the employee wins (Cleveland Board of Education v. Loudermill, 1985). For action short of firing, a prompt hearing afterward may be enough when the government's interest is significant and reasonable grounds were established separately. In Gilbert v. Homar (1997), no hearing was required before suspending without pay a tenured police officer arrested and charged with a felony. Constitution AnnotatedConstitution Annotated
A public school suspensionIn Goss v. Lopez (1975), Ohio law provided free education to residents ages 5 to 21 and required attendance, so the Supreme Court held the state had to give students some hearing rights before suspending them. Ohio "may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred." Constitution Annotated
A driver’s licenseKeeping a driver's license, which may be essential to earning a living, is a protected property interest. In Bell v. Burson (1971), a state could not suspend the license of a driver who failed to post security after an accident without letting the driver raise the question of fault. When a license suspension is automatic after a set number of convictions, no hearing is required, because the facts can't be in dispute (Dixon v. Love, 1977). The Supreme Court upheld a Massachusetts law that suspended the license of a driver who refused a breath test after a drunk-driving arrest (Mackey v. Montrym, 1979), noting states' "great leeway" to use quick procedures to protect public health and safety. Constitution AnnotatedConstitution Annotated
Civil commitmentTo commit someone to a mental hospital against their will for an indefinite period, the government must prove its case by at least "clear and convincing" evidence. The "preponderance of the evidence" used in ordinary lawsuits isn't enough, but a criminal case's "beyond a reasonable doubt" isn't required (Addington v. Texas, 1979). A state cannot confine, without more, a person who is not dangerous and can live safely in freedom alone or with help from willing family or friends, the Supreme Court held in O'Connor v. Donaldson (1975). Constitution Annotated
Ending parental rightsBecause a parent's interest in keeping custody of a child is fundamental, a state may not end parental rights on a "preponderance of the evidence." It must prove the parent unfit by clear and convincing evidence, and it can't assume unfitness from some trait of the parent (Santosky v. Kramer, 1982). Constitution Annotated
A criminal chargeDue process requires proof beyond a reasonable doubt in criminal cases, even though no specific clause says so, the Supreme Court held in In re Winship (1970). In state criminal cases, the 14th Amendment's Due Process Clause applies nearly all the Bill of Rights' criminal protections, including those of the Fourth, Fifth, Sixth and Eighth amendments. It also bars practices that violate basic fairness even if no specific right covers them. The 14th Amendment's due process protections in state criminal cases are comparable in scope to the limits the Fifth Amendment puts on federal criminal cases. Constitution Annotated
Parole revocationFor parole revocation, the Supreme Court held in Morrissey v. Brewer (1972) that due process requires two hearings: promptly after the parolee's arrest, an informal hearing on whether there are reasonable grounds to revoke; then, within a reasonable time after the parolee is taken into custody, a more formal revocation hearing. A lawyer isn't always required at a parole or probation revocation. But the state should provide one to a person who can't afford a lawyer and may have trouble presenting their side without cross-examining witnesses or handling complicated documents. A lawyer should presumptively be provided when the person asks for one and makes a timely claim, with some basis, that they didn't commit the violation, or when there are reasons that justify or lessen the violation and might make revocation inappropriate (Gagnon v. Scarpelli, 1973). Constitution Annotated
Removal of a noncitizen already in the countryNoncitizens who have physically entered the country generally have due process protection, which applies to all "persons" in the United States "whether their presence here is lawful, unlawful, temporary, or permanent." In formal removal (deportation) proceedings, it generally includes the right to a hearing and a meaningful chance to be heard. A person caught shortly after crossing the border unlawfully could be treated as an applicant for admission, with only the rights regarding admission that Congress has provided by statute, the Supreme Court held in Department of Homeland Security v. Thuraissigiam (2020). How much process a noncitizen in the country gets may vary with their status and circumstances, including whether they were admitted or have built substantial ties here. The Congressional Research Service says there is some uncertainty about how far due process limits Congress's immigration power over noncitizens in the country. Constitution AnnotatedConstitution Annotated

Procedural and Substantive Due Process

  • Due process has two parts. Procedural due process means the government must follow certain procedures before it takes away a protected interest in life, liberty or property. Substantive due process means there are certain fundamental rights the government may not infringe even if it follows fair procedures. Constitution Annotated
  • The Fifth Amendment's Due Process Clause limits the federal government, and the Supreme Court reads the 14th Amendment's Due Process Clause to impose the same limits on the states. Both have procedural and substantive parts. Constitution Annotated
  • The 14th Amendment limits governments, not private parties: the Supreme Court has said it "erects no shield against merely private conduct, however discriminatory or wrongful." The same "state action" rule applies to the federal government. Constitution Annotated
  • Serving the public doesn't make a private group's acts state action. The "public function" exception is limited to powers "traditionally exclusively reserved to the State." Attempts to apply it to private utilities, private schools for "problem" children referred by public agencies, and nursing homes paid almost entirely with public money failed. Constitution Annotated
  • If a state officer acts with a private party to take the property in dispute, that is enough to make it state action, and the private party can be sued if the seizure doesn't meet due process (Lugar v. Edmondson Oil Co., 1982). Constitution Annotated

When Due Process Applies

  • Unless a protected interest in life, liberty or property is at stake, the Due Process Clause does not apply. Constitution Annotated
  • Liberty traditionally means freedom from physical restraint or confinement, but the Supreme Court has read it to include other rights that come from the common law and from statutes. Constitution Annotated
  • A property interest covers ownership of land and belongings. It can also come from an "entitlement": a law or government policy that creates a reasonable expectation that a government benefit will continue. Constitution Annotated
  • A need, a desire or a one-sided expectation is not enough for a property interest. A person must have a "legitimate claim of entitlement," created by rules or understandings from a source such as state law. Constitution Annotated
  • The Supreme Court has rejected the old idea that government jobs and benefits are mere "privileges" the government can take away without fair procedures. Constitution Annotated

What Fair Procedures Include

  • The core requirements are notice and a hearing before an impartial decision-maker, though the details vary with the interests at stake. Due process may also require a chance to confront and cross-examine witnesses, an exchange of evidence (discovery), a decision based on the record, or the chance to be represented by a lawyer. Constitution Annotated
  • Notice must be reasonably calculated to tell the people affected about the action and give them a chance to object. It must say enough for the person to see what the government proposes and what they must do to prevent the loss. Constitution Annotated
  • The Supreme Court has held that "some form of hearing is required before an individual is finally deprived of a property [or liberty] interest." The hearing must come at a meaningful time and in a meaningful manner, but the type of hearing, and when it must happen, depend on the circumstances. Constitution Annotated
  • A required hearing must be a fair one. A person must be able to present evidence and to know the other side's claims and respond to them. Constitution Annotated
  • The decision to take away a protected interest must be made by an impartial decision-maker, in civil and criminal cases alike. Constitution Annotated
  • The decision must rest on the rules and evidence presented at the hearing, and the decision-maker should state the reasons and the evidence relied on. Constitution Annotated
  • The procedures due process requires vary with the circumstances. A key question is whether the matter is criminal or civil. Constitution Annotated

When a Hearing Can Wait or Isn’t Required

  • In rare emergencies, when quick action is needed to prevent imminent harm to the public and the private interest is less important, the government can act with no notice or chance to object first, as long as a full hearing follows. Seizing contaminated food or drugs is one example. Constitution Annotated
  • When the grounds for taking something away are so routine that the chance of error is very small, the government may skip even minimal hearing procedures. Constitution Annotated
  • Due process does not require a hearing before a legislature passes a law or an agency writes regulations that apply generally. People can't challenge a law because lawmakers gave no notice or held no hearing first. Constitution Annotated
  • An official's carelessness that causes an unintended loss does not raise a due process issue. The Supreme Court said in Daniels v. Williams (1986) that "the Due Process Clause is simply not implicated by a negligent act of an official." Constitution Annotated

Due Process for Noncitizens

  • The Supreme Court has held that noncitizens seeking to enter the country for the first time have no due process protections for their applications for admission. For noncitizens physically in the country, due process may limit the government's immigration power. Constitution Annotated
  • Noncitizens who have physically entered the country generally have due process protection, which applies to all "persons" in the United States "whether their presence here is lawful, unlawful, temporary, or permanent." In formal removal (deportation) proceedings, it generally includes the right to a hearing and a meaningful chance to be heard. Constitution Annotated
  • How much process a noncitizen in the country gets may vary with their status and circumstances, including whether they were admitted or have built substantial ties here. The Congressional Research Service says there is some uncertainty about how far due process limits Congress's immigration power over noncitizens in the country. Constitution Annotated

Substantive Due Process and Vague Laws

  • Substantive due process protects certain fundamental rights from government interference no matter what procedures the government follows. It has generally dealt with areas such as liberty of contract, marriage and privacy. Constitution Annotated
  • The fundamental rights protected by substantive due process are not listed in the Constitution, and courts look more closely at government actions that burden them. The Supreme Court has recognized rights to use contraceptives, to marry and to engage in certain adult consensual intimate conduct. Constitution Annotated
  • Before the Great Depression, the court struck down many economic regulations as violating a "liberty of contract," but it "ultimately retreated from the doctrine of economic substantive due process." Constitution Annotated
  • Since the 1980s, apart from two cases on the rights of same-sex couples, the Supreme Court has generally declined to strike down government actions on substantive due process grounds. In 2022, it held that abortion is not a constitutionally protected fundamental right, which the Congressional Research Service calls a signal of a "potential retreat from noneconomic substantive due process." Constitution Annotated
  • Due process requires a criminal law to define the offense clearly enough that ordinary people can understand what is prohibited and in a way that does not encourage arbitrary enforcement. A law that fails this is "void for vagueness." Constitution Annotated
  • The Supreme Court has struck down two kinds of laws as void for vagueness: laws that define crimes and laws that set the sentences for crimes. Constitution Annotated

Eminent Domain Is a Separate Rule

  • The Fifth Amendment's Takings Clause, a separate clause from its Due Process Clause, says "nor shall private property be taken for public use, without just compensation." U.S. Constitution
  • The government may take private property only for a public use, and it must pay just compensation. It cannot take property for any other purpose, even with payment. Constitution Annotated
  • Just compensation is generally the property's market value, meaning what a willing buyer would pay a willing seller. It is measured by the owner's loss, not the government's gain. Constitution Annotated

Getting Help

This page is a general explanation, not legal advice about any specific situation.

For advice about your own situation, talk to a lawyer.

  • USA.gov lists free and low-cost legal help: the Legal Services Corporation helps people with low incomes find legal aid in their community, and LawHelp.org lists free legal aid for people with low to moderate incomes. USA.gov

How Current This Is

  • The Constitution Annotated's 2024 supplement covers Supreme Court cases decided through July 1, 2024. Constitution Annotated

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