(Episode 21) If You Can Steep It: The Fifth Amendment, Part 2 of 3

In Season 3, Episode 2, we continue our discussion of the Fifth Amendment to the Constitution. Specifically, we focus on the due process clause, which states that "No person shall . . . be deprived of life, liberty, or property, without due process of law[.]"

Remember that there are two due process clauses: one in the Fifth Amendment (dealing with the federal government) and one in the Fourteenth Amendment (dealing with state governments). We'll deal with the Fourteenth Amendment later.

The Fifth Amendment's due process clause dates way, way back to the Magna Carta, and the final Amendment is identical to what Madison recommended back in 1789. The basic principal of the clause is this: the government should be limited in how it makes decisions that are detrimental to private persons. In other words, the government has to follow the rule of law. Seems like kind of a given, right? Not so much.

In this episode, we'll discuss two major facets of the Fifth Amendment Due Process Clause that are important: procedural due process (what rules do we follow?), and substantive due process (what is the substance of what we're protecting?). We'll attempt to discuss what the heck "due process" is, what exactly is meant by life/liberty/property and how that's changed over time, and who is protected. The due process clause is also where we find this concept of fair notice (which is good) and "vagueness" (which is bad).

What are some important things to remember? As a very brief overview:

  1. You can be deprived of life, liberty, or property by the federal government - just not without due process of law;
  2. The due process clause constrains government action, not private entities;
  3. Be careful of the numerous administrative agencies of the government, which (depending on which agency it is and what that agency is doing) don't always fall under the requirements of the due process clause.
Some other good resources: