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.

The Fifth Amendment provides that “no person” shall be deprived of “life, liberty, or property, without due process of law.” 1 Generally, “due process” guarantees protect individual rights by limiting the exercise of government power.2 The Supreme Court has held that the Fifth Amendment, which applies to federal government action, provides persons with both procedural and substantive due process guarantees. 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.3 Procedural due process often requires the government to provide a person with notice and an opportunity for a hearing before such a deprivation.4 In addition, the Supreme Court has interpreted the Fifth Amendment’s Due Process Clause to include substantive due process guarantees that protect certain fundamental constitutional rights from federal government interference, regardless of the procedures that the government follows when enforcing the law.5 Substantive due process has generally dealt with specific subject areas, such as liberty of contract, marriage, or privacy.

The Fifth Amendment’s Due Process Clause protects all persons within U.S. territory, including corporations,6 aliens,7 and, presumptively, citizens seeking readmission to the United States.8 However, the states are not entitled to due process protections against the federal government.9 The clause is effective in the District of Columbia10 and in territories that are part of the United States,11 but it does not apply of its own force to unincorporated territories.12 Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.13 The Clause restrains Congress in addition to the Executive and Judicial Branches and “cannot be so construed as to leave Congress free to make any process ‘due process of law’ by enacting legislation to that effect.” 14

Due process cases may arise under both the Fifth and Fourteenth Amendments. Both amendments use the same language but have a different history.15 The Supreme Court has construed the Fourteenth Amendment’s Due Process Clause to impose the same due process limitations on the states as the Fifth Amendment does on the federal government.16 Fourteenth Amendment due process case law is therefore relevant to the interpretation of the Fifth Amendment. Except for areas in which the federal government is the actor, much of the Constitution Annotated's discussion of due process appears in the Fourteenth Amendment essays.17

Footnotes

1

U.S. Const. amend. V.

2

Due Process, Black’s Law Dictionary 610 (10th ed. 2014).

3

See Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (citing Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961)).

4

Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912).

5

E.g., Zablocki v. Redhail, 434 U.S. 374, 386–87 (1978) (citing Loving v. Virginia, 388 U. S. 1 (1967)).

6

Sinking Fund Cases, 99 U.S. 700, 719 (1879).

7

Wong Wing v. United States, 163 U.S. 228, 238 (1896).

8

United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927).

9

South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966).

10

Wight v. Davidson, 181 U.S. 371, 384 (1901).

11

Lovato v. New Mexico, 242 U.S. 199, 201 (1916).

12

Public Utility Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920).

13

Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1 (1946).

14

Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856). See also Massachusetts Supreme Judicial Court Chief Justice Lemuel Shaw’s opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857).

15

French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).

16

Cf. Arnett v. Kennedy, 416 U.S. 134 (1974); Heiner v. Donnan, 285 U.S. 312, 326 (1932) ( “The restraint imposed upon legislation by the due process clauses of the two amendments is the same.” ); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 610 (1936).

17

See Amdt14.S1.3 Due Process Generally.