The Constitution contains two due process clauses: a clause in the Fifth Amendment that applies to the federal government and a clause in the Fourteenth Amendment that applies to the states. The traditional definition of "due process" is that the government cannot take away life, liberty, or property from any person without a legal proceeding. However, modern understandings of due process extend further.
The Due Process Clause in the Fourteenth Amendment incorporates nearly all of the rights provided by the Bill of Rights, which consists of the first 10 amendments to the Constitution. These rights initially protected individuals only against federal government actions, while state governments were constrained by state constitutions. Although the Supreme Court determined that the Due Process Clause does not automatically incorporate every right in the Bill of Rights, all but the following rights have been gradually incorporated:
Protections against being forced to provide housing to soldiers during peacetime (Third Amendment)
The right to a grand jury trial (Fifth Amendment)
The right to a jury in a civil case (Seventh Amendment)
Protections against excessive fines (Eighth Amendment)
Incorporating a right from the Bill of Rights means that the state government must not infringe on that right. The four non-incorporated rights above do not apply to interactions between state governments and citizens.
Procedural Due Process
One thread of due process doctrine involves the procedures that are required before the government can remove life, liberty, or property. A jury trial is not necessarily required, but the individual must have notice of the proceeding and receive an opportunity to be heard. They also must have their case heard before an impartial tribunal.
The Supreme Court has determined that property rights do not simply involve real estate or tangible items of personal property. Recipients of some government benefits, for example, are entitled to due process before the loss of their right to benefits. When considering whether due process has been satisfied in these less obvious cases, a court will weigh individual rights against government interests in a balancing test provided by the Supreme Court. Factors to consider include the nature of the right, a comparison of the procedures provided to alternative procedures that could have been used, and the burden imposed on the government in using other procedures.
Substantive Due Process
The second thread of due process doctrine is more controversial. It stems from Supreme Court decisions finding that due process protects substantive rights that go beyond the rights specifically enumerated by the Constitution. Historically, substantive due process formed the basis of decisions striking down state regulations that protected workers. The Court reasoned that these regulations violated the freedom of contract, which was an unenumerated right. However, this line of reasoning ended during the New Deal era, and economic applications of substantive due process have been widely discredited.
More recently, substantive due process often has involved the right to privacy. This is also not explicitly provided in the Constitution. In Griswold v. Connecticut, the Supreme Court decided that the right to privacy is implied from several provisions in the Bill of Rights. These include the right to assembly and protections against searches and seizures. The Court thus struck down a Connecticut law preventing married couples from using contraception. Standards for applying substantive due process remain murky, though. The majority opinion in Washington v. Glucksberg indicated that an unenumerated right must be carefully described, closely tied to American history and traditions, and implicit in notions of "ordered liberty." Other Court decisions have departed from that approach in favor of a more fluid, case-specific analysis.