Question

What is the difference between the due process protections in the Fifth Amendment and the Fourteenth Amendment, and why is that difference significant?

Answer 1

The Due Process Clause of the Fourteenth Amendment is exactly like a similar provision in the fifth amendment, which only restricts the federal government. It states that no person shall be “ deprived of life, Liberty or property without due process of law”. Usually “due process” refers to fair procedures. However, the Supreme Court has also used this part of the Fourteenth Amendment to prohibit certain practices outright. For instance, the Court has ruled that the Due Process Clause protects rights that are not specifically listed in the Constitution, such as the right to privacy regarding sexual relations. In Roe v. Wade (1973), the Court ruled that this right to privacy included a woman’s decision to have an abortion. In addition, the Court used the Due Process Clause to extend the bill of rights to the states over time through a practice known as “incorporation”.

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