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Amdt5.6.1 Overview of Due Process Procedural Requirements

Fifth Amendment:

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.

If the federal government seeks to deprive a person of a protected life, liberty, or property interest, the Fifth Amendment’s Due Process Clause requires that the government first provide certain procedural protections.1 The Supreme Court has construed the Fourteenth Amendment’s Due Process Clause to impose the same procedural due process limitations on the states as the Fifth Amendment does on the Federal Government.2 Fourteenth Amendment due process case law is therefore relevant to the interpretation of the Fifth Amendment.3

The Court first addressed due process in the 1855 Fifth Amendment case Murray’s Lessee v. Hoboken Land and Improvement Co.4 In Murray’s Lessee, the Court held that it would determine (independently from Congress) whether the government had provided due process by evaluating whether the statutory process conflicted with the Constitution and, if not, whether it comported with “those settled usages and modes of proceedings existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.” 5

In the 1884 Fourteenth Amendment case Hurtado v. California, the Court held that a process could be judged based on whether it had attained “the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law.” 6 To hold that only historical, traditional procedures can constitute due process, the Court said, would render the law “incapable of progress or improvement.” 7

Due process often requires the government to provide a person with notice and an opportunity for a hearing before depriving the person of a protected interest.8 However, there are some circumstances in which the Court has held those precedural protections are not required. For instance, persons adversely affected by a law cannot challenge the law’s validity on the ground that the legislative body that enacted it gave no notice of proposed legislation, held no hearings at which the person could have presented his arguments, and gave no consideration to particular points of view.9 Similarly, when an administrative agency engages in a legislative function, for example by drafting regulations of general application, it need not hold a hearing prior to promulgation.10 On the other hand, if a regulation would affect an identifiable class of persons, the Court employs a multi-factor analysis to determine whether notice and hearing is required and, if so, whether it must precede such action.11

The Supreme Court articulated the modern test for what process is required before the government may invade a protected interest in a civil proceeding in the 1976 case Mathews v. Eldridge.12 Because most of the cases applying Mathews have arisen under the Fourteenth Amendment, the Constitution Annotated discusses Mathews and subsequent cases applying the Mathews test in essays on Fourteenth Amendment procedural due process requirements.13 Other Fourteenth Amendment essays discuss Supreme Court cases involving key components of procedural due process, including notice, the opportunity for a hearing, and other procedural requirements.14

Because the Court has decided relatively few due process cases applying the Fifth Amendment in cases involving criminal procedure, the Fourteenth Amendment essays address the narrower due process inquiry that the Court has often applied in this context.15 In civil contexts, the Court has applied a broad balancing test that evaluates the government’s chosen procedure with respect to the private interest affected, the risk of erroneous deprivation of that interest under the chosen procedure, and the government interest at stake.16 By contrast, the Court has held that the “appropriate framework” for due process analysis of criminal procedures is a narrow inquiry into whether a procedure is offensive to the concept of fundamental fairness.17

See Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (citing Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961)). back
Cf. Arnett v. Kennedy, 416 U.S. 134 (1974). back
See Amdt14.S1.3 Due Process Generally. back
Murray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 276–77, 280 (1856). The Court took a similar approach in Fourteenth Amendment due process interpretation in Davidson v. City of New Orleans, 96 U.S. 97 (1878), and Munn v. Illinois, 94 U.S. 113 (1877). back
Murray’s Lessee, 59 U.S. (18 How.) at 276–77, 280. back
Hurtado v. California, 110 U.S. 516, 528–29 (1884). back
110 U.S. at 529, 532–37. The Court has followed this flexible approach. E.g., Twining v. New Jersey, 211 U.S. 78 (1908); Powell v. Alabama, 287 U.S. 45 (1932); Palko v. Connecticut, 302 U.S. 319 (1937); Snyder v. Massachusetts, 291 U.S. 97 (1934). back
Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912). back
Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445–46 (1915). See also Bragg v. Weaver, 251 U.S. 57, 58 (1919). Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 432–33 (1982). back
United States v. Florida East Coast Ry., 410 U.S. 224 (1973). back
410 U.S. at 245 (distinguishing between rule-making, in which legislative facts are at issue, and adjudication, in which adjudicative facts are at issue, and requiring a hearing in the latter proceedings but not in the former). See Londoner v. City of Denver, 210 U.S. 373 (1908). back
424 U.S. 319, 333 (1976). back
See Amdt14.S1.5.4.2 Due Process Test in Mathews v. Eldridge. back
See, e.g., Amdt14.S1.5.4.3 Notice of Charge and Due Process and Amdt14.S1.5.4.4 Opportunity for Meaningful Hearing. back
Amdt14.S1.5.5.1 Overview of Procedural Due Process in Criminal Cases. back
See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In Nelson v. Colorado, the Supreme Court held that the Mathews test controls when evaluating state procedures governing the continuing deprivation of property after a criminal conviction has been reversed or vacated, with no prospect of reprosecution. See No. 15-1256, slip op. at 1, 5 (April 19, 2017). back
See Medina v. California, 505 U.S. 437, 443 (1992). back