How does the Due Process Clause in the Fourteenth Amendment differ?

Quick answer: how due process under the Fourteenth Amendment differs in plain terms

One-paragraph summary, due process 14th amendment

The Fourteenth Amendment’s Due Process Clause bars states from depriving any person of life, liberty, or property without due process, and it is the principal constitutional vehicle for limiting state action, particularly through incorporation and doctrinal tests, according to a legal encyclopedia summary Due Process Clause (Wex).

In short contrast, the Fifth Amendment’s Due Process Clause constrains the federal government; the Fourteenth extends like protections to state governments and is where courts consider both procedural and substantive claims, as explained in modern case law and summaries Due Process Clause (Wex). For a concise primer on the 5th vs 14th comparison see 5th vs 14th due process.

Readers should expect two main doctrinal strands to appear in this article: procedural due process, judged by the Mathews v. Eldridge balancing test, and substantive due process, where courts look to history and tradition as described in Washington v. Glucksberg and reshaped in recent decisions such as Dobbs Mathews v. Eldridge.

What to expect in this article

This article walks through the constitutional history that made the Fourteenth Amendment central to state-level due process issues, then explains the operative tests judges use for procedural and substantive claims. It offers checklists and hypotheticals to show how Mathews and Glucksberg work in practice, and points readers to primary opinions for case-specific analysis Due Process Clause (Wex).

The goal is a neutral, plain-language comparison that helps voters, students, and reporters read the cases and spot common errors without making predictions about outcomes.

Historical context: why the Fourteenth Amendment became the main vehicle for state due process limits

Post-Civil War purpose and adoption

The Fourteenth Amendment was adopted during Reconstruction to constrain state governments and protect individual rights against state action; this historical purpose places its Due Process Clause at the center of state-level constitutional claims, as summarized in legal encyclopedias and constitutional histories Due Process Clause (Wex).

That historical role matters because much modern doctrine interprets the Clause as a safeguard against improper state power rather than as a free standing grant of new powers to state governments. See the site hub on constitutional rights for related material.

The historical role matters because much modern doctrine interprets the Clause as a safeguard against improper state power rather than as a restriction on federal power.

Relationship to the Bill of Rights and incorporation

Over time courts developed the incorporation doctrine, which uses the Fourteenth Amendment to apply many protections from the federal Bill of Rights against the states; incorporation is a separate route from substantive due process for limiting state action Due Process Clause (Wex).

A modern example of selective incorporation shows how the process works in practice and why the Fourteenth Amendment serves as the vehicle for applying federal protections at the state level McDonald v. City of Chicago.

Text and role: the Fourteenth Amendment’s Due Process Clause and how it compares to the Fifth

Exact clause language and plain meaning

The Due Process Clause of the Fourteenth Amendment is commonly summarized as forbidding any state from depriving a person of life, liberty, or property without due process of law, a plain triad that guides many constitutional inquiries and is explained in legal reference materials Due Process Clause (Wex). For a plain-language explanation of the Fourteenth Amendment see Fourteenth Amendment meaning.

Courts read those three protected interests, life, liberty, and property, as the starting point for procedural procedures and as the categories in which substantive claims may arise.

How courts use the clause to check state power

Court decisions use the Fourteenth Amendment both to require adequate procedures before a state deprives someone of an interest and to restrict the state from interfering with certain fundamental liberties; that dual role explains why judges often invoke different tests depending on whether the claim is procedural or substantive Due Process Clause (Wex).

Operationally, the Fifth Amendment plays a parallel role at the federal level, while the Fourteenth Amendment is the primary vehicle for limiting state action and for incorporation of Bill of Rights provisions against states McDonald v. City of Chicago.

Procedural due process: the Mathews v. Eldridge balancing test

What procedural due process protects

Procedural due process addresses the question of what procedures the government must use before depriving someone of life, liberty, or property; courts ask what process is constitutionally required in the circumstances rather than whether the underlying deprivation itself is lawful Mathews v. Eldridge.

Procedural claims typically arise in administrative, criminal, and public benefit contexts where individuals assert they were denied required protections before the government took action.

The three Mathews factors explained with examples

Mathews v. Eldridge sets out a three-part balancing framework: first, the private interest affected; second, the risk of erroneous deprivation and the probable value of additional safeguards; and third, the government’s interest, including administrative burdens and costs, as articulated by the Court in that opinion Mathews v. Eldridge.

Applied to a benefits termination, for example, courts evaluate how much the individual stands to lose, how likely a mistaken deprivation is under existing procedures, and whether adding a hearing or other safeguard imposes unreasonable costs or delays for the government.

That balancing exercise means procedural protections can vary by context; a high private interest and a significant risk of error weigh toward more process, while heavy administrative burdens or marginal gains from extra safeguards weigh against them Mathews v. Eldridge.

Substantive due process: Glucksberg, Dobbs, and how courts identify fundamental rights

History-and-tradition test from Washington v. Glucksberg

Substantive due process differs because it asks whether the Constitution protects a particular liberty from government interference even when procedures are followed, and Washington v. Glucksberg explained that courts should look to the Nation’s history and tradition when identifying new fundamental rights Washington v. Glucksberg.

That history-and-tradition approach asks whether a claimed right is deeply rooted in the country’s past and implicit in ordered liberty, rather than relying on open ended value judgments by judges.

Dobbs and its effects on recognition of unenumerated rights

In Dobbs v. Jackson Women’s Health Organization, the Court revisited earlier substantive due process precedents and narrowed the protection previously recognized for certain unenumerated rights, demonstrating that the Supreme Court can and does reassess which rights qualify for heightened protection Dobbs v. Jackson Women’s Health Organization. State-court responses and commentary on post-Dobbs doctrine appear in law reviews and professional outlets recent analysis.

Dobbs prompted renewed doctrinal debate about the standards courts should use to recognize fundamental rights, and lower courts and scholars continue to litigate how to apply history-and-tradition and related inquiries in light of that decision What is substantive due process? Explainer. Professional organizations have also collected state-court developments since Dobbs State courts after Dobbs.

Incorporation doctrine: how the Fourteenth Amendment applies federal rights to the states

Selective incorporation and key examples

The incorporation doctrine, often called selective incorporation, uses the Fourteenth Amendment to apply specific protections from the Bill of Rights against the states, rather than treating the Bill of Rights as automatically binding on state governments; summaries of the doctrine explain its selective character Due Process Clause (Wex).

Courts decide incorporation claims one right at a time, asking whether a particular safeguard is necessary to protect fundamental liberty or ordered justice when applied to the states.

McDonald v. City of Chicago as a modern example

McDonald v. City of Chicago is a contemporary illustration where the Supreme Court concluded that the Second Amendment right recognized in federal contexts applies against the states through the Fourteenth Amendment, demonstrating the doctrine’s practical operation McDonald v. City of Chicago.

Incorporation therefore operates alongside substantive due process as a distinct means to check state power, and readers should note the difference between a right recognized by incorporation and a right identified under substantive due process.

How courts apply tests and decide close cases: practical decision criteria

Which facts push a claim toward more process or more protection

Courts resolve close due process cases by weighing the Mathews factors for procedural claims, and by examining historical tradition and the seriousness of the asserted liberty interest for substantive claims; practitioners watch those doctrinal touchpoints closely when framing arguments Mathews v. Eldridge.

That factual mix matters because procedural protections and substantive recognition both turn on fact patterns that judges describe in opinions.

Role of precedent, history, and balancing in close calls

When precedent is clear, courts follow the controlling rule, but in borderline situations a judge will often explain how the balancing factors or history-and-tradition inquiry tip the outcome, and those explanations matter for future cases Due Process Clause (Wex).

Dobbs shows that the Supreme Court can revisit prior holdings, so lower courts also consider signals from concurring and dissenting opinions when predicting doctrinal direction in complex disputes Dobbs v. Jackson Women’s Health Organization.

Open doctrinal questions and ongoing debates since Dobbs

Which standards lower courts should use for new rights claims

Scholars and judges debate whether history-and-tradition should remain the exclusive test for new substantive rights or whether other frameworks can help identify rights, and that debate intensified after Dobbs when the Court narrowed certain precedents Dobbs v. Jackson Women’s Health Organization.

Lower courts face uncertainty about how strictly to apply Glucksberg’s approach and how to treat persuasive authority from other jurisdictions when assessing novel claims.

How Mathews and Glucksberg are applied in different contexts

Another open question is how to calibrate Mathews in administrative settings with high volumes of decisions, and how to apply Glucksberg when claimed liberties do not fit neatly into historical categories; commentators note both problems are actively litigated What is substantive due process? Explainer.

Readers should consult the primary opinions when a particular factual scenario is at issue because doctrinal application varies by context and jurisdiction.

Common errors and misconceptions to avoid when reading about due process

Mistaking procedural protections for substantive guarantees

A frequent mistake is treating procedural protections as a substitute for substantive shielding of a right; procedural safeguards govern how a decision is made and do not always create immunity from state regulation in substantive terms Due Process Clause (Wex).

Another common error is assuming that because some rights have been incorporated, every provision of the Bill of Rights automatically binds the states; incorporation is selective and decided case by case.

Overstating the scope of incorporation

Readers should be cautious about claims that every federal right applies to states; McDonald illustrates incorporation for one controversial right, but incorporation doctrine proceeds incrementally and with judicial analysis tailored to each right McDonald v. City of Chicago.

Finally, avoid treating recent doctrinal shifts as settled law in all contexts; Dobbs changed the landscape for some substantive claims, and follow up litigation continues to define specific rules.

Practical hypotheticals: apply Mathews and Glucksberg to sample scenarios

Administrative benefits denial (procedural focus)

Imagine a state agency terminates a social benefit without advance notice and without a pretermination hearing; to apply Mathews, a court first assesses the private interest, which may be substantial if the benefit supports basic living needs, and then considers the risk of erroneous deprivation under existing procedures and whether extra safeguards would reduce that risk Mathews v. Eldridge.

Finally the court weighs the government’s interest, including budget and administrative efficiency; if the private interest and risk of error are high while the government burden is modest, Mathews may favor more process.

Asserted new liberty claim (substantive focus)

Consider a litigant who asks a court to recognize a new unenumerated liberty. Under Glucksberg, the court asks whether the claimed right is deeply rooted in the Nation’s history and tradition and whether it is implicit in ordered liberty, a demanding test that limits new rights recognition Washington v. Glucksberg.

If the claimed liberty lacks historical pedigree, the court is likely to deny substantive protection unless there is a strong showing that the interest is fundamental under the established threshold.

Reading the opinions: how to extract the controlling test from a Supreme Court decision

Majority, concurring, and dissenting opinions – what matters

When reading a Supreme Court opinion, focus on the majority holding and the rationale that explains the rule; holdings and the Court’s reasoning determine the controlling test for lower courts, while concurrences and dissents help identify unresolved questions and potential shifts Mathews v. Eldridge.

Concurrences can be influential if they articulate a narrower or broader rule that later judges adopt, and dissents sometimes signal themes that return in later arguments.

Finding the operative rule for lower courts

Lower courts look for the narrowest grounds necessary to resolve a case, but they also parse opinion language to determine which parts of the reasoning constitute binding precedent and which are persuasive commentary, a practical skill for lawyers and journalists Due Process Clause (Wex).

When cases like Dobbs alter doctrinal framing, careful reading of majority and concurring texts is essential for understanding how lower courts must apply the new standard Dobbs v. Jackson Women’s Health Organization.

A short checklist for journalists, students, and voters evaluating due process claims

Quick attribution checklist

Verify whether a claim is procedural or substantive, cite Mathews for procedural questions and Glucksberg for substantive inquiries, and note any post-Dobbs developments affecting substantive analysis Mathews v. Eldridge.

Check whether the claimed right has been incorporated, and if so, identify the controlling incorporation opinion for that right.

Questions to ask about precedent and facts

Ask whether the asserted right is grounded in history and tradition, what the private interest and risk of error are under Mathews, and whether a controlling Supreme Court opinion addresses the specific fact pattern at issue Due Process Clause (Wex).

When in doubt, link to the primary opinions and explain which parts of the text support the legal rule you report.

Further reading and authoritative sources

Key Supreme Court opinions to read

Primary opinions useful for deeper study include Mathews v. Eldridge for procedural due process, Washington v. Glucksberg for the history-and-tradition test, Dobbs v. Jackson Women’s Health Organization for recent substantive due process developments, and McDonald v. City of Chicago for incorporation examples Mathews v. Eldridge.

Reading those opinions directly is the most reliable way to understand how courts framed their rules and why they reached particular results.

Reliable secondary sources and explainers

Neutral explainers such as the Legal Information Institute and focused pieces on doctrine provide accessible context and are useful starting points before reviewing the primary sources What is substantive due process? Explainer.

For case-specific legal research, consult the opinions themselves and law review commentary when deeper doctrinal analysis is needed.

Conclusion: key takeaways on how the Fourteenth Amendment’s due process differs

Three concise takeaways

First, the Fourteenth Amendment is the primary constitutional tool for limiting state action and for applying many federal rights to states through incorporation, as explained in legal summaries and cases Due Process Clause (Wex).

Second, procedural due process claims are typically resolved using the Mathews balancing test, while substantive due process asks whether a claimed liberty is deeply rooted in history and tradition as described in Glucksberg, with recent reexaminations in Dobbs prompting lively debate Mathews v. Eldridge.

Third, doctrine is unsettled in several areas after Dobbs, so readers should consult the primary opinions for case specific rules and remain attentive to lower-court developments Dobbs v. Jackson Women’s Health Organization.

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