No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Professor of Law, the Patricia Roberts Harris Research Professor, and Founding Director of the Criminal Law and Policy Initiative at the George Washington University Law School
James Madison Distinguished Professor of Law at the University of Virginia School of Law
The principle that the government should be limited in how it makes decisions that are detrimental to private people is very old in Anglo-American law. The Magna Carta, a statement of subjects’ rights issued by King John of England in 1215, became well known over the centuries. Chapter 39 provided that “[n]o free man shall be arrested or imprisoned . . . except by lawful judgment of his peers or by the law of the land.” This language and its subsequent refinements gave rise to the concept of “due process of law,” and influenced the drafters of the Due Process Clause of the Fifth Amendment to the United States Constitution.
Although the Fifth Amendment Due Process Clause is brief, important parts of the Supreme Court’s constitutional doctrine rest on it. At the most general level, the clause reiterates the principle of the rule of law: the government must act in accordance with legal rules and not contrary to them. A more specific application of the Clause is the doctrine today called “procedural due process,” which concerns the fairness and lawfulness of decision making methods used by the courts and the executive. Governmental actors violate due process when they frustrate the fairness of proceedings, such as when a prosecutor fails to disclose evidence to a criminal defendant that suggests they may be innocent of the crime, or when a judge is biased against a criminal defendant or a party in a civil action. Likewise, fair notice and the opportunity to be heard are due process requirements in criminal, civil, and other proceedings. The Court also attributes to the Due Process Clause a notice requirement that applies to statutes rather than executive and judicial action. A statute that is extremely unclear can be, in the Court’s terms, void for vagueness. This is because it does not give people sufficient or fair notice of what the law requires.
Another, more controversial application of the Clause is the doctrine today called “substantive due process,” which extends beyond the methods government institutions use to make decisions, and places substantive limits on governmental authority. There are long-standing debates regarding whether the text and history of the Fifth Amendment Due Process Clause support the concept of “substantive due process” that has been embraced by most of the current Supreme Court justices in varying degrees. These differences of opinion necessarily are informed by interpretations of the meaning and relevance of the historical evidence, the meaning of the words used by the Framers in the Clause and whose understanding of that meaning is relevant, and more fundamental views of whether the meaning of the Constitution was fixed when written or can change over time. Despite the lack of consensus over the scope of substantive due process, the meaning of the Fifth Amendment Due Process Clause in the procedural context is relatively settled as a matter of Supreme Court jurisprudence.
Although both the Fifth and Fourteenth Amendments have Due Process Clauses (the Fifth Amendment Due Process Clause constraining the authority of the federal government and the identical Due Process Clause of the Fourteenth Amendment constraining only state governments), there is only one Equal Protection Clause, and it applies only to the States. The Court has also found that the Due Process Clause of the Fifth Amendment imposes on the federal government restrictions that are almost identical to those imposed on the States by the Equal Protection Clause of the Fourteenth Amendment.
James Madison Distinguished Professor of Law at the University of Virginia School of Law
The least controversial aspect of the Fifth Amendment’s Due Process Clause is also its least interesting. The clause may reiterate the rule of law itself with respect to the ways in which decisions are made. Whatever else it means, due process of law very likely means the government must follow procedure called for by the applicable law, other than the Due Process Clause itself. (For example, if an applicable statute says that the courts of appeals must hear oral argument in certain cases, they may not limit parties to written submissions.) While a promise by King John to respect the rule of law may have been significant in 1215, when an ancestor of the Due Process Clause first appeared in Magna Carta, in our legal system with a written constitution, it is simply assumed that the executive and the courts must operate in accordance with legal rules.
Whether the Due Process Clause adds any procedural requirements of its own is more doubtful, but it may. On one hand, due process of law is sometimes used to mean something more than compliance with whatever procedural rules the law contains. On the other hand, constitutional drafters who wanted to make sure that government decisions were subject to procedural requirements might have thought such a vague provision to be too unclear to impose specific requirements on top of the procedural rules contained in other laws.
The history of the Due Process Clause suggests another reading, one that was very important for many decades but that has largely dropped out of sight. According to this interpretation, due process of law means specifically the procedures that are used by, and only by, the courts. Courts decide according to existing law after giving parties notice and a hearing. According to this interpretation, the Clause is part of the separation of powers: it absolutely forbids the executive and the legislature from doing what the courts do, which is to deprive people of life, liberty, or property. As an historical matter, this reading was mainly deployed against legislation that directly altered property rights by pure force of law, like statutes cancelling corporate charters previously granted. While this reading played a very important role in constitutional history, it is subject to the objection that it just reiterates the separation of powers itself: if there are functions that only courts may perform, the separation of powers keeps the legislature and the executive from performing those functions. This reading of the Due Process Clause (and of analogous provisions in state constitutions) was the textual foundation of the nineteenth century doctrine of vested rights, according to which private property, and private rights created by contracts, were protected against legislative alteration.
Substantive due process as it is currently understood—meaning that the government may not violate certain fundamental rights that do not appear elsewhere in the Constitution, and may not draw certain classifications (for instance, based on race or sex), without especially strong justification—is difficult to justify in light of the text and history of the Fifth Amendment. The text is at best a very indirect way of saying that government must be reasonable, that unidentified but important interests are protected to some substantial but unidentified extent, and that some unidentified grounds of distinction must have an especially strong justification. If the drafters wanted to convey any of those messages, they would have done so much more openly and in much greater detail. The history does not suggest that the Due Process Clause of the Fifth Amendment was anything like as important or ambitious as current substantive due process doctrine makes it.
Professor of Law, the Patricia Roberts Harris Research Professor, and Founding Director of the Criminal Law and Policy Initiative at the George Washington University Law School
The Fifth Amendment’s Due Process Clause does as much work as any provision in the Constitution. The Clause requires fundamental procedural fairness for those facing the deprivation of life, liberty, or property. The Clause also has been interpreted to place substantive limits on governmental authority, meaning that there are certain fundamental freedoms the government cannot take away, regardless of what procedures (for example, notice and a hearing before a judge) that it employs. Under this view, the Clause addresses not only the fairness and availability of procedures the government provides, but also speaks to what the government may forbid or require. As is discussed in the joint essay, the nature and extent of “substantive due process” has long been a matter of intense debate in the United States.
However, while jurists and scholars tend to focus on procedural due process and substantive due process, another important aspect of the Clause deserves greater attention. The Fifth Amendment’s Due Process Clause is also understood to require fair notice. As noted in the joint essay, the due process requirement of fair notice applies not only to notice to parties regarding the availability or pendency of formal proceedings, but also to situations when statutes and sanctions are not sufficiently clear to provide proper notice to those governed by their terms. As the Supreme Court noted in its recent decision in Johnson v. United States (2015), the vagueness doctrine of the Due Process Clause protects against “a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.”
In Johnson, the Court addressed part of a key federal criminal sentencing statute, which required someone convicted of a crime to serve a longer prison sentence if they had previously been convicted of three or more “violent felonies.” The Court held that the definition of “violent felony” was ambiguous (it was unclear whether crimes like attempted burglary or possessing an illegal weapon count as “violent felonies”), and thus, the law did not provide proper notice to defendants who might be sentenced more harshly under the law. For this reason, the Court concluded that it violated Fifth Amendment’s Due Process Clause. However, one justice in that case criticized the Clause’s vagueness doctrine, suggesting that its evolution was similar to that of substantive due process, and noting the Court’s historical use of the vagueness doctrine as the basis for striking down a wide variety of laws regulating both social and economic activities.
Nevertheless, whether or not one’s reading of the Clause supports the invalidation of a statute on vagueness grounds, it is safe to say that the vagueness doctrine is well-settled as a feature of the Fifth Amendment’s Due Process Clause in the Supreme Court’s jurisprudence. Despite the attention paid to procedural due process and substantive due process, the vagueness doctrine is central to the Due Process Clause’s place in the constitutional matrix, as it is also a significant constraint on government action and, therefore, merits greater recognition.
