Let’s Be Clear: Recognizing the Vagueness Doctrine of the Fifth Amendment’s Due Process Clause

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National Constitution Center


The Fifth Amendment’s Due Process Clause does as much work as any provision in the Constitution. The Clause requires fundamental procedural fairness for those facing the deprivation of life, liberty, or property. The Clause also has been interpreted to place substantive limits on governmental authority, meaning that there are certain fundamental freedoms the government cannot take away, regardless of what procedures (for example, notice and a hearing before a judge) that it employs. Under this view, the Clause addresses not only the fairness and availability of procedures the government provides, but also speaks to what the government may forbid or require. As is discussed in the joint essay, the nature and extent of “substantive due process” has long been a matter of intense debate in the United States.