Sample Essay on The Due Process Clause: Meaning and Scope


For quite long, Americans have been known for their set of values, mostly the value of freedom and independence. This is reflected in a number of Constitutional Amendments that puts extreme emphasis on various forms of freedom and liberty, encompassed in the American bill of rights. Due process is a legal principle that the government is bound to respect the rights of an individual as owed to the person by the law (Ellis, 2007). As such, any action of the government that affects an individual’s right must be exercised in accordance to the law. This means that both the substance and the procedure of the law must be strictly adhered to. Consequently, where a government or its agent’s action is not exercised in accordance to the procedure and substance of the law, then the court should offer a redress to the aggrieved individual (Clinton, 1981). This paper seeks to explore the meaning , scope, historical evolution and the significance of the concept of due process as enshrined in the  two Amendments of the American Constitution.

The Due Process Clause: Meaning and Scope 

The right to due process is guaranteed by the Fifth and Fourteenth Amendment to the US Constitution. The Fifth Amendment guarantees due process to the citizens and protection from self-incriminations. The due process clause in the fourteenth amendment provides, inter alia, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law” ( Section 2). The Fourteenth Amendment further guarantees individuals the protection against any state with regards to “personal decisions relating to marriage, procreation, contraception, family relationship, child rearing, and education.”  Guaranteeing the social elements in the supreme law of the land, later after the independence constitution had been drafted, shows spirited and national effort to safeguard them.  It further reflects a consensus that such aspects are of fundamental value and thus need to be legally protected at the national level and be kept intact. The family has a key role in imparting values, since the family as an institution up brings children and is therefore best place to impart values on the children and discourage the undesired actions in the course of upbringing, or through family support and encouragement  programs. The court has also pointed out that the effects of the two amendments are effect similar, except that they operate to different levels of governance (Malinski v. New York, 1945). The Fifth Amendment relates to the   federal government whereas the later relates to the states, although the wordings are virtually similar.

There are two aspects of due process, depending on the nature of law to be observed, namely: procedural due process and substantive due process.  Procedural aspect of the due process pertains to the breach of the legal procedure. Unlike the procedural due process which delves into the questions of procedure, substantive due process addresses breach of the party’s substantive rights and the substantive provisions of the law. For instance, it is a substantive requirement under Florida’s Title XLVII Criminal Procedure and Corrections, it is a requirement that a certification be obtained from the court before any communication is intercepted though the electronic and surveillance. Failure to follow this procedure will lead to breach of procedural due process.  However, the statute further provides that the certification used to facilitate interception must specify the time, place, facility and nature of the activity affected.  Thus, where the right procedure is followed, by securing a certification, the  but there is an error like failure to disclose the place of operation, then the document would be rendered defective for want of substantive procedural due. Consequently, any right that divests from the document would also be invalid for want of due process.

The concept of procedural due process has been interpreted broadly to encompass the doctrine of “void for vagueness” in relation to the laws passed by the government. Under this doctrine, the legislators are obliged to pass laws that are unequivocal and very specific on the actions or inactions expected of the citizens. Thus, laws that are vaguely stated, in terms of what they demand of the citizens will be null and void to the extent that they are vague.  The ruling in Coates v. Cincinnati (1971) aptly captures this doctrine , where the court declared to be “void for vagueness” the use of the word “annoying” in Ohio’s Ordinance in reference to outlawed assembles.  Relying on the previous ruling in Cameron v. Johnson (1968), the majority of the Supreme Court held that the word was too broad and therefore vague to the extent that an average person could note deduce the scope of what the regulation require of them. Thus, a vague law would as well be held to be in want of due process, and thus be held to be invalid to that extent.

Historical Background

The evolution of the due process clauses in the American Constitution has a winding history, dating back to Magna Carta and the common law doctrine of natural justice and due process. Magna Carta was a law that was issued by John, King of England, who decreed that no one shall be deprived of liberty or be deprived of their liberty, save by a fair judgment or one’s pears or by established law of the land. This decree was understood to limit the crown’s powers over individuals’ rights, although it was broadly use in relation to land rights. These rights were added to the American clause though the in Fifth Amendment in 1789.  Until 1856, the Supreme Court had not made and landmark ruling relating to the rights. However, in 1857, the court did make an infamous ruling invalidating statutory laws freeing duly bought slaves.  Another invalidation of legislation was witnessed in Wynehamer v. People (1856), where New York Court of Appeals invalidated laws prohibiting sale of liquor for breaching the constitutional right to property.  In 1868, the Fourteenth Amendment was added, with closely the same wording as that of Fifth Amendment, save that it specified to be applicable to the citizens against the state. It has been argued that the Amendment was designed to extend due process protection to the slaves that had just been freed, from being mistreated by the states (Ellis, 2007).

Initially, there was a view, spearheaded by Justice  Hugo Black and afterwards by Justice John M. Harlan that the whole of bill of rights, including the right to due process needed to be interpreted vey narrowly so as to safeguard  what is fundamentally needed to secure liberty (Ellis, 2007). However, during the tenure of Melville W. Fuller as the Chief justice, the Supreme Court adopted a broader interpretation and expanded due process to economic rights, under the concept of substantive due process. Specifically, in Allgeyer v. Louisiana (1897), the courts held that the industries under statutory regulations had a right to charge reasonable rates,  as to deprive them of this was to deprive their right to property. Similarly, in Allgeyer v. Louisiana (1897). Similarly, in Lochner v. New York (1905) , the court held that citizen’s right to enter into a contract was a liberty falling within the scope of due process provisions and as such the law he restrict working hours were struck down for want of substantive due process.

Another debate was on the scope of the due process , as applicable to federal and state government. The need to pass the 14th amendment was premised on the view that the Bill of Rights only bound the federal government, a view affirmed in Barron v. City of Baltimore (1833). It was thus, necessary to pass a law specifically binding the states. However, , Justice Felix Frankfurter was later to assert that the Fourteenth  amendment Clause had an “independent potency,” different from the other bill of rights (Chicago, Burlington & Quincey Railroad Co. (1897). It therefore bound the states to uphold individual’s liberty , such as compesatiing when acquiring private property (Chicago, Burlington & Quincey Railroad Co.,  1897), or restricting speeches (Gitlow v. New York , 1925). Justice Hugo, however maintained that all rights are applicable against the state and as such state courts needed to apply all of them (Adamson v. California, 1947).


Substantive due process is important to the citizens as it presents a guarantee provisions that the citizens fundamental rights will under no circumstance be infringed by government .In the Allgeyer v. Louisiana (1897) the court did interpret the Clause of Due Process as presenting a provision for the  “freedom of contract”  by protecting  private contracts thereby prohibiting  a range of economic and social regulation. The court thus did strike a law decreeing highest working hours for bakery employees in Lochner V. New York (1905) and a law on minimum wage in Adkins V. Children’s Hospital (1923). To add on to this significance, the Court did state In  Meyer  V. Nebraska (1923) that “liberty” as in the guarded by the Clause of Due Process with no doubt designate not just liberty as of bodily restraint but equally the individual right to contract, to be involved in any common life occupations, to obtain helpful knowledge, to set up a home, to marry, bring up children, to adore God as per their own conscience and to generally enjoy all the privileges  recognized by the common law as essential for the happiness pursuit by any free man .

Again, Due Process as in the two Amendments is considered as the foundation to the existing constitutionally recognized right to privacy. The first Court ruling on privacy as constitutionally protected was in Griswold v. Conneticut (1965) in which the Connecticut law illegalizing birth control was overturned. In this, the” liberty” protection as provided for by the Due Process was declared to encompass the individual privacy.  Roe v. Wade (1973) which invalidated  the abortion-forbidding law in Texas also presented a basis for the privacy rights. The  Court decision in Roe v. Wade (1973) disallowed many federal and state abortion restrictions and this was documented as one of the high controversies in the history of the Court. Besides, the Lawrence v. Texas (2003) declared the Texas law criminalizing homo-sexual intercourse as a violation of the privacy rights.

            The Procedural Due Process requirements as per the Supreme Court holds that in a case where/when a government   is seeking to burden  an individual’s protected property interest or liberty interest, the government has to at a minimum provide the individual with a notice, a chance to be heard as well as a decision  from a disinterested decision-maker. This applies for instance when an agency of the government wants to terminate a civil servant or expel a learner/student from a government/public school (Mathews v. Eldridge 1976;White, 2008). Court rulings obliges judges to recues themselves in cases in which they have conflicts of interests (Caperton v. A.T. Massey Coal Co.2009).


A number of what now constitutes the bill of rights evolved overtime though series of amendments that followed the adoption of the initial American constitution. A pillar of fundamental American values enshrined in today’s American constitution is the value for due process, which are enshrined in the Fifth and Fourteenth Amendments to the American Constitution. The clause of “Due Process” as contained in the Fifth Amendments is textually  identical to that of the Fourteenth Amendments (Fourteenth Amendment Due Process clause) with negligible difference as the latter solely applies against states and former against federal governments.  Their significance equally portray this identical nature as the two mutually  reads from identical substantive due process and procedural due process doctrines. As has been shown, these rights, the essence of due process is to ensure that individuals are not unfairly treated or abused by the actions of the government














































Adkins v. Children’s Hospital, 261 U.S. 525 (1923)

Allgeyer v. Louisiana, 165 U.S. 578 (1897)

Allgeyer v. Louisiana, 169 U.S. 649 (1897)

 Cameron v. Johnson, 390 U.S. 611 (1968)

Caperton v. A.T. Massey Coal Co., 556 U.S. ___ (2009)

Caperton v. A.T. Massey Coal Co., 556 U.S. ___ (2009)

Chicago, Burlington & Quincey Railroad Co.,  1897

Coates v. Cincinnati, 402 U.S. 611 (1971)

Dred Scott v. Sandford, 60 U.S. 393 (1857)

Ellis, J.J. (2007) American Creation: Triumphs and Tragedies at the Founding of the Republic. New York: Knopf

Griswold v. Connecticut (1965

Gupta, Gayatri (2009). “Due process”. In Folsom, W. Davis; Boulware, Rick. Encyclopedia of American Business. Infobase. p. 134

Lawrence v. Texas, 539 U.S. 558 (2003)

Lochner v. New York, 198 U.S. 45 (1905)

Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905).

Malinski v. New York, 324 U.S. 401 (1945)

Meyer v. Nebraska, 262 U.S. 390 (1923)

Roe v. Wade, 410 U.S. 113 (1973)

Wynehamer v. People (1856, 13 N. Y. 378