Guest Essayist: James C. Clinger
Principle of Due Process of Law

Essay Read by Constituting America Founder, Janine Turner



The principle of due process of law has long been a central principle in Anglo-American jurisprudence. The principle has been formally codified within the Fifth and Fourteenth Amendments of the United States Constitution. However, while the principle has a long history, it has changed dramatically over time, with new interpretation and applications of the principle affecting not only law and administrative practices throughout the country.

In Clause 39 of the Magna Carta, the essence of due process is expressed in the following terms: “No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.”[i] At the very least, this provision limited the power of the crown to take arbitrary or capricious injurious actions that were not sanctioned by law. The phrase “law of the land” later found its way into many of the provisions of American state constitutions, although the phrase “due process of law” was also used, with apparently very similar if not identical meaning. Many of the early state courts, applying this language, considered the protections of due process or the law of the land to be a means of preventing governments from carrying out policies threatening vested rights in property of their citizens, although it could also protect their personal liberty.[ii]

The “due process” language appeared in the federal constitution in the form of the Fifth Amendment, which declares that no person “be deprived of life, liberty, or property without due process of law.” The Fifth Amendment is most famous for its provisions regarding criminal procedures, although it also contains the very significant “takings clause” pertaining to protections for property. There is very little historical record regarding the inclusion of the due process language, and the clause was not invoked by the United States Supreme Court until the 1856 case of Murray v. Hoboken Land & Improvement Company.[iii]    The following year saw the clause invoked again, this time in an infamous ruling in the case of Scott v. Sanford,[iv] more commonly known as the Dred Scott decision.

For much of the period before the Dred Scott case, state courts had generally treated due process as a procedural protection, just as the wording suggests. When government deprived someone of life, liberty, or property, due process required that individuals have a right to a hearing before an impartial arbiter and to confront their accusers. In short, due process did not absolutely prohibit deprivations of life, liberty, or property by government but did require government to do so only in a manner that contained expected legal safeguards. What emerged in the Dred Scott decision was a judicial concern for the substance of government action, a view that has come to be known as “substantive due process.” To some, substantive due process is an oxymoron concept, much like “green, pastel redness,” in the words of John Hart Ely.[v] In this decision, Chief Justice Roger Taney, joined by six other justices, ruled that the federal government had deprived a slaveholder of property without due process of law by forbidding slavery in free territories under the Missouri Compromise. This decision was essentially about the substance of the federal government’s position on slavery and had little to do with the process by which that policy came into being or the way in which it was enforced. The decision was immensely controversial and must be considered one of the key events that precipitated the Civil War.

After the war, Congress proposed and the requisite number of states ratified the Fourteenth Amendment to the Constitution, which includes a due process clause that is applicable specifically to the states, rather than just the federal government. It should be noted that most state constitutions already had due process clauses at the time the Fourteenth Amendment was ratified, but this new provision involved the federal government in ensuring that due process was followed. These protections were intended to provide a legal guarantee of due process for the recently freed slaves and their descendants in all states, including the states that had promoted slavery prior to the Thirteenth Amendment. Of course, the language was quite broad, offering a guarantee of due process to all persons.

Many states, however, found ways to circumvent the due process clause, largely because the provisions applied to public action, rather than private activities. In some cases, the clause was used by business organizations who believed that state regulations deprived them of property without due process of law. In the case of Lochner v. New York, the Supreme Court invoked essentially substantive due process arguments to strike down a New York law limiting the working hours of bakers.[vi] In that case, the plaintiff successfully argued that the state law denied him property that could have been generated if his freedom to contract had not been denied by the regulation. By the 1930s, the Supreme Court stepped away from economic versions of substantive due process arguments, but in the 1960s and thereafter began to identify a doctrine of individual privacy that is not explicitly based on specific provisions of the Constitution but which appears to be a socially liberal version of substantive due process.[vii]

Another implication of the Fourteenth Amendment’s due process clause is what has been called the “selective incorporation” of the Bill of Rights. What this doctrine means is that some if not all provisions of the Bill of Rights, which originally limited the actions of the federal government, are now applied to the state governments. It is not clear that the drafters of the Fourteenth Amendment had any form of incorporation in mind when the due process clause was written. The Supreme Court did not clearly apply this doctrine until 1925 in the Gitlow v. New York decision that applied the First Amendment’s protection of freedom of speech to state governments.[viii] No majority of the Court has ever concluded that the entirety of the federal constitution applies to the states, but the Court has concluded that the Fourteenth Amendment selectively incorporates only those rights that are “of the very essence of a scheme of ordered liberty.”[ix] Over time, through incremental decisions, the Court has incorporated most of the Bill or Rights. The few exceptions include such provisions as the Third Amendment’s prohibition against the quartering of soldiers, the grand jury indictment requirement in the Fifth Amendment, and the Seventh Amendment’s stipulation that a jury trial be available for suits where the value in controversy exceeds twenty dollars.

Over the last sixty years, the due process clause of the Fourteenth Amendment has taken on new meaning because the definitions of property have changed. The language of the clause indicated that due process must be provided when the state deprives “life, liberty, or property.” In cases involving capital punishment, the government clearly must supply due process. In fact, in such cases the government is compelled to provide exceptional procedural protections. In cases involving arrest or incarceration, obviously the government is obligated to provide due process. Traditionally, when governments deprive individuals of property they are involved in activities such as eminent domain or regulations that affect personal and corporate income. But beginning in the 1960s, the courts began to perceive that individuals could have a property interest in various kinds of government benefits, which could include welfare or disability payments, public contracts, government licenses or permits, or even public employment. In 1968, the Supreme Court ruled that welfare recipients had a property interest in the receipt of their payments, so that the state of New York could not terminate payments without first having a public pre-termination hearing.[x] A few years later, applying the Fifth Amendment’s due process clause, the Court ruled that recipients of Social Security disability checks were entitled to some due process, but not as much as in the case at issue in Goldberg v. Kelly. With disability cases, post-termination hearings would be sufficient, because the Court reasoned that other interests must be “balanced” with those of the individual claimants.[xi] The courts have continued to ponder very particular circumstances in individual cases to determine how much and what kind of process is due in very particular situations.[xii]

The last issue that this essay examines is the ambiguous issue of what constitutes public action. The due process clauses of the Fifth and Fourteenth Amendments apply to public entities, not private firms or organizations. But can a private organization be subject to due process requirements if it is acting pursuant to public policies?[xiii] Of course, there is also a dispute regarding what constitutes a policy? Would a guidance document issued by a government agency be considered a public policy? A statute enacted by a legislature no doubt would be a public action. Generally speaking, a rule issued by a government agency under a legislature’s delegated authority would be considered a public action, since it would normally be considered legally binding. A guidance document or an interpretive rule would not, strictly speaking, be considered legally binding, but agencies may threaten investigations or the loss of future grant funds or contractual dollars if a private organization is not in compliance with directives that are not formally recognized as legally binding. The case law on these issues is still developing, but recent cases indicate that private organizations acting under the influence of government may be liable if they do not offer due process protections, even if the policy that they are following is quite informal. For example, Cornell University, a private institution, has been challenged by a dismissed faculty member for following irregular investigative procedures derived in part from the Title IX guidance handed down by the Office of Civil Rights within the Department of Education.[xiv]

James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.

[i] Magna Carta, Clause 39.  Accessed July 7, 2023 from Magna Carta Project – 1215 Magna Carta – Clause 39 (

[ii] Inglis, Laura. “Substantive Due Process: Continuation of Vested Rights?” The American Journal of Legal History 52, no. 4 (2012): 459–97.

[iii] 18 Howard 272.

[iv] 60 US 393 (1857)

[v] John Hart Ely, 1980.  Democracy and Distrust: A Theory of Judicial Review.  Cambridge: Harvard University Press, p. 18.

[vi] 198 US 45 (1905)

[vii] See, for example, Griswold v. Connecticut 381 US 479 (1965).

[viii] 268 US 652 (1925)

[ix] 302 US 319 (1937)

[x] 397 U.S. 254 (1970)

[xi] 424 U.S. 319 (1976)

[xii] Shapiro, Sidney A., and Richard E. Levy. 2005. “Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Due Process.” Administrative Law Review 57 (1): 107–53.

[xiii] Verkuil, Paul R. 2005. “Privatizing Due Process.” Administrative Law Review 57 (4): 963–93.

[xiv] Vengalatorre v. Cornell University.  2022.  United States Court of Appeals for the Second Circuit.   Docket No. 20-1514.

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