Text Assist for Due Process Clause (summary) Flowchart


There are two Due Process Clauses in the Constitution:

1) The Fifth Amendment states: "No person shall be . . . deprived of life, liberty, or property, without due process of law." (applies to the federal government)

2) The Fourteenth Amendment provides: "No State shall . . . deprive any person of life, liberty, or property, without due process of law." (applies to the states)

For a detailed analysis of Due Process, see the following flow charts: Substantive Due Process, Procedural Due Process, Economic Due Process, Incorporation of the Bill of Rights, Lochner v. New York.


State Action Doctrine:
Generally, the only was the Constitution can be violated is if there is a state action. There are two requirements before a court will find a state action:
1. There must be a state actor; and
2. The state actor must act under the color of state law.

See the
State Action Doctrine flow chart for an analysis and applications of this doctrine.


Undue Burden Doctrine:
Does the law create an unequal deprivation or allocation? If so, it may trigger the Equal Protection Clause. Test it out by running your law through the
Introduction to Equal Protection flow chart.


Personal Due Process:
The interest interfered with must rise to the level of a liberty or a property "right" in order for an individual to have that interest protected by the Constitution. Once a liberty or property right is established by virtue of a reasonable expectation having been created by state law, the scope of that right, and the appropriate procedures for protecting that right, are defined by federal law (not by the state).

For more information, see the following flow charts:
Substantive Due Process, Incorporation of the Bill of Rights, Lochner v. New York.


Economic Due Process:

The Rise of Economic Due Process
Before the New Deal, during the "Lochner Era," business reigned freely, with few restrictions. When businesses were threatened with a stifling law, the courts used the Due Process Clauses of the Fifth and Fourteenth Amendments to strike it down as arbitrary and unreasonably interfering with the liberty to contract. In Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed 937 (1905), the State of New York enacted a law that limited the number of hours a baker could work (60 hours a week or 10 hours a day). A majority of the Supreme Court held the New York law invalid, calling it an arbitrary and unnecessary interference with the liberty to contract between an employer and employee. Such intrusion by the State of New York, according the Supreme Court, violated the Fourteenth Amendment.

For a case study of the Court’s protection of businesses against government regulation, see the
Lochner v. New York flow chart.

The Decline of Economic Due Process
The public was outraged when the judiciary piece by piece struck down the New Deal in the 1930's. The doctrine of Economic Due Process began to erode. For example, in Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505 (1934), the Supreme Court upheld the regulation of milk prices despite a Due Process challenge. The Court stated that "a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare. 291 U.S. at 537, 54 S.Ct. at 516.

Such deference to the legislature was a significant departure for the Court after the "Lochner Era." The Courts departure became complete with the decision of Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461 (1955), wherein the court upheld an Oklahoma law restricting the ability of opticians to fit or duplicate eyeglasses, despite appellee’s due process and equal protection arguments.

For more information, see the following flow charts: Economic Due Process, Substantive Due Process.


Substantive Due Process:
Substantive Due Process theory began to develop before the Civil War. Prior to this development, both the English and the early American legal theorists’ idea of Due Process focused on the procedural feature of the concept. With the rise of "natural rights" philosophy, theorists began applying Substantive Due Process.

One case that had a profound impact in the rise of Substantive Due Process was Dred Scott v. Sanford, 60 U.S. (2 How.) 393 (1857), in which the Supreme Court held that a person’s property right in his slaves cannot be extinguished simply by the act of moving to a free state. So, even though Dred Scott now lived in a "free" state, he was required (per the decision of the Supreme Court) to remain a slave. From this decision, the Court began to realize that Due Process meant much more than just procedure. While Procedural Due Process gives the Court the power to say to the government, "You may not do this unless you do it a certain way"; Substantive Due Process allows the Court to say, "You may not do this at all!"

For more information, see the
Substantive Due Process flow chart.


Theories of Incorporation:
"Incorporation," or, "absorption" if you ask Justice Cardozo, is a technique whereby the court imports the substantive rights contained in the first eight amendments which otherwise, per Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), apply only to the federal government, and makes those rights applicable to the states through the Fourteenth Amendment.


Selective Incorporation:

Selective Incorporation is a selective theory of "natural rights." Those provisions that are implicit in the concept of ordered liberty will be applied to the states through the 14th Amendment. This would mean that certain clauses of the Bill of Rights should be made applicable to the states, but not all. Justice Cardozo and Justice Frankfurter were both proponents of selective incorporation.

Justice Frankfurter proposed that in order for a Bill of Rights provision to be incorporated, it must be:
1. A "fundamental right" essential to our civil and political institutions;
2. A basis in our system of jurisprudence;
3. Necessary for a civilized system;
4. One that goes to the very essence of a scheme of ordered liberty;
5. An echo fundamental fairness.

Justice Black denounced selective incorporation for two reasons:
1. Black felt that all of the Bill of Rights were incorporated by the Due Process Clause; and
2. According to Black, the Constitution provided no judicial license to reach out and "identify" which rights were fundamental and which were not.

No Incorporation:
Justices Harlan and Stewart (dissent in Duncan) felt that incorporation in any form should be rejected. It incorporation was intended to exist, it would have been explicitly called for in the 14th Amendment. According to this theory, the fact that the Bill of Rights may parallel some fundamental rights is just a coincidence.


Total Incorporation:
Justices Black and Douglas urged the Court to recognize "total incorporation." Total incorporation makes all of the Bill of Rights applicable to the states. Black and Douglas feared that without total incorporation, the judiciary would have too much authority and could trump the will of the people. According to Black, the very purpose of the P&I Clause and the Due Process Clause was to make the Bill of Rights applicable to the states in response to the Civil War and black codes.


Positive Rights:
Some of the positive goods/services provided by the state are:
1) Police, fire protection
2) Education
3) Utilities
4) Streets, roads
5) Employment
6) Welfare
7) Social service


Negative Rights:
The United States Constitution provides only "negative rights" because the federal government is limited (federalism). Also, positive rights are the proper subject of the legislative process; Congress has the power to provide, but is not required to do so.


Procedural Due Process:
The Constitution grants certain rights to the people and places certain limitations on the government’s power. Most of these rights and restraints are procedural. For example:
1) You are entitled to a fair trial before going to jail;
2) You may not be compelled to be a witness against yourself;
3) Your home may not be searched unless the police first obtain a search warrant.

The Constitution does not forbid the government from putting you in jail or searching your house, it just must abide by certain procedures first.

Historian’s trace Procedural Due Process Clauses of the 5th and 14th Amendments to the English Magna Carta, which provided "guaranties against the [King’s] oppressions and usurpations of royal prerogative." The document required the King, his consuls and his agents to respect "the law of the land." Like our modern Due Process Clauses, the Magna Carta protected the public against the government’s arbitrary and random acts.

For more information, see the
Procedural Due Process flow chart.


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