Due Process Clause

In the 1884 case of Hurtado v. California, the U.S. Supreme Court said:[79]

Due process of law in the [Fourteenth Amendment] refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.

The Due Process Clause of the Fourteenth Amendment applies only against the states, but it is otherwise textually identical to the Due Process Clause of the Fifth Amendment, which applies against the federal government; both clauses have been interpreted to encompass identical doctrines of procedural due process and substantive due process.[80] Procedural due process is the guarantee of a fair legal process when the government tries to interfere with a person's protected interests in life, liberty, or property, and substantive due process is the guarantee that the fundamental rights of citizens will not be encroached on by government.[81] The Due Process Clause of the Fourteenth Amendment also incorporates most of the provisions in the Bill of Rights, which were originally applied against only the federal government, and applies them against the states.[82]

SUBSTANTIVE DUE PROCESS

Main article: Substantive due process

Beginning with Allgeyer v. Louisiana (1897),[83] the Court interpreted the Due Process Clause as providing substantive protection to private contracts, thus prohibiting a variety of social and economic regulation; this principle was referred to as "freedom of contract".[84] Thus, the Court struck down a law decreeing maximum hours for workers in a bakery in Lochner v. New York (1905)[85] and struck down a minimum wage law in Adkins v. Children's Hospital (1923).[86] In Meyer v. Nebraska (1923),[87] the Court stated that the "liberty" protected by the Due Process Clause

[w]ithout doubt ... denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.[88]

However, the Court did uphold some economic regulation, such as state Prohibition laws (Mugler v. Kansas, 1887),[89] laws declaring maximum hours for mineworkers (Holden v. Hardy, 1898),[90] laws declaring maximum hours for female workers (Muller v. Oregon, 1908),[91] and President Woodrow Wilson's intervention in a railroad strike (Wilson v. New, 1917),[92] as well as federal laws regulating narcotics (United States v. Doremus, 1919).[93] The Court repudiated, but did not explicitly overrule, the "freedom of contract" line of cases in West Coast Hotel v. Parrish (1937).[94]

In Poe v. Ullman (1961),dissenting judge John Marshall Harlan II adopted a broad view of the "liberty" protected by the Fourteenth Amendment Due Process clause:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, ... and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.[95]

This broad view of liberty was adopted by the Supreme Courtin Griswold v. Connecticut[96] (for further information see below).Although the "freedom of contract" described above has fallen into disfavor, by the 1960s, the Court had extended its interpretation of substantive due process to include other rights and freedoms that are not enumerated in the Constitution but that, according to the Court, extend or derive from existing rights.[84] For example, the Due Process Clause is also the foundation of a constitutional right to privacy. The Court first ruled that privacy was protected by the Constitution in Griswold v. Connecticut(1965), which overturned a Connecticut law criminalizing birth control.[97] While Justice William O. Douglas wrote for the majority that the right to privacy was found in the "penumbras" of various provisions in the Bill of Rights, Justices Arthur Goldberg and John Marshall Harlan II wrote in concurring opinions that the "liberty" protected by the Due Process Clause included individual privacy.[98]

The right to privacy was the basis for Roe v. Wade (1973),[99] in which the Court invalidated a Texas law forbidding abortion except to save the mother's life. Like Goldberg's and Harlan's concurring opinions in Griswold, the majority opinion authored by Justice Harry Blackmun located the right to privacy in the Due Process Clause's protection of liberty. The decision disallowed many state and federal abortion restrictions, and it became one of the most controversial in the Court's history.[100] In Planned Parenthood v. Casey (1992),[101] the Court decided that "the essential holding of Roe v. Wade should be retained and once again reaffirmed".[102]

In Lawrence v. Texas (2003),[103] the Court found that a Texas law against same-sex sexual intercourse violated the right to privacy.[104] In Obergefell v. Hodges (2015), the Court ruled that the fundamental right to marriage included same-sex couples being able to marry.[105]

PROCEDURAL DUE PROCESS

When the government seeks to burden a person's protected liberty interest or property interest, the Supreme Court has held that procedural due process requires that, at a minimum, the government provide the person notice, an opportunity to be heard at an oral hearing, and a decision by a neutral decision maker. For example, such process is due when a government agency seeks to terminate civil service employees, expel a student from public school, or cut off a welfare recipient's benefits.[106][107] The Court has also ruled that the Due Process Clause requires judges to recuse themselves incases where the judge has a conflict of interest. For example, in Caperton v. A.T. Massey Coal Co. (2009),[108] the Court ruled that a justice of the Supreme Court of Appeals of West Virginia had to recuse himself from a case involving a major contributor to his campaign for election to that court.[109]