AP Syllabus focus:
‘The Fifth and Fourteenth Amendments bar government from taking life, liberty, or property without due process; the Fifth limits the national government and the Fourteenth limits states.’
Due process is a foundational constitutional limit on government power. In AP Gov, you must distinguish how the Fifth and Fourteenth Amendments protect people from unfair deprivations, depending on whether the federal or state government is acting.
Due process: the core idea
Due process: The constitutional requirement that government follow fair and lawful methods (and, in some contexts, respect certain fundamental rights) before depriving a person of life, liberty, or property.
The Constitution uses due process language to prevent arbitrary government action and to ensure that government power is exercised under law rather than personal discretion.
The Fifth Amendment: due process against the national government
What it says (and who it restrains)
The Fifth Amendment Due Process Clause applies to the federal (national) government. It means federal actors—Congress, the President, federal agencies, and federal courts—must comply with due process when they take away protected interests.
Key AP distinction
If a federal agency revokes a licence, seizes property, or detains a person, the relevant constitutional due process limit is typically the Fifth Amendment (unless another specific right applies).
The Fourteenth Amendment: due process against the states
What it says (and why it exists)
The Fourteenth Amendment Due Process Clause applies to state governments (and, by extension, many actions by local governments through state authority).
This National Archives image shows the original enrolled document proposing the Fourteenth Amendment (1866), a key Reconstruction-era source for modern due process against the states. Seeing the historical document underscores that the Due Process Clause’s “life, liberty, or property” language is constitutional text—not merely a judicial gloss—and helps contextualize why the Fourteenth Amendment became central to evaluating state action. Source
Adopted after the Civil War, it constitutionalised limits on states that had historically violated individual rights.
Key AP distinction
If a state legislature passes a law that deprives individuals of liberty or property without constitutionally adequate process, the challenge generally arises under the Fourteenth Amendment.
“Life, liberty, or property”: what government cannot take lightly
Life
Government actions that expose someone to loss of life (for example, lethal force policies or capital punishment systems) raise due process concerns, particularly about lawful authority and the required safeguards.
Liberty
Liberty includes physical freedom (restraint, detention) and broader freedom interests recognised by courts. For AP purposes, focus on the baseline: government cannot restrain a person without lawful justification and constitutionally sufficient procedures.
Property
Property includes more than land or money; it can include certain recognised entitlements (such as some benefits or licences) once the law treats them as protected interests. The central point is that government cannot take property arbitrarily.
Why having two due process clauses matters
Federalism: which government is being limited?
This Venn diagram template helps students sort governmental powers into federal, state, and shared categories, reinforcing the federalism framework used in due process analysis. It pairs well with the AP Gov skill of identifying which level of government is acting before selecting the Fifth (federal) or Fourteenth (state) Amendment as the relevant due process constraint. Source
Due process is a shared constitutional principle, but the amendment you cite depends on the level of government:
Fifth Amendment = limits the national government.
Fourteenth Amendment = limits states (and state-backed local action).
“Person,” not just “citizen”
Both clauses protect persons, a term that generally reaches beyond citizens. On exams, this supports the idea that due process protections are not limited to voting-age citizens or members of a political majority.
Link to the Bill of Rights (without replacing it)
The Fourteenth Amendment’s due process language is also central to how many protections first written to restrain the federal government became enforceable against states over time. In exam writing, keep the causal chain clear: due process sets the constitutional floor for lawful deprivations, and it helps structure how courts evaluate state action.
FAQ
Courts have often treated corporations as “persons” for certain constitutional purposes.
This can mean some due process protections apply when government regulates, fines, or revokes corporate rights, though the scope can differ from natural persons.
The phrase traces to English legal traditions limiting the Crown, including principles associated with Magna Carta.
In US constitutional practice, it evolved into a judicially enforceable requirement that government act under law rather than arbitrary command.
Courts look for a sufficient connection between a private actor and the state.
Common considerations include governmental coercion, significant encouragement, joint participation, or when a private entity performs a traditionally exclusive public function.
The original design primarily limited the new national government, reflecting concerns about federal overreach.
State constitutions and state political processes were initially expected to handle many individual-rights protections at the state level.
Yes. Congress and state legislatures can create statutory procedures and protections that exceed constitutional baselines.
However, statutes cannot authorise procedures that fall below what the Constitution requires under the Fifth or Fourteenth Amendments.
Practice Questions
(3 marks) Explain the difference between the Fifth Amendment Due Process Clause and the Fourteenth Amendment Due Process Clause.
1 mark: Identifies that due process prevents government from depriving life, liberty, or property without due process of law.
1 mark: States that the Fifth Amendment applies to the national/federal government.
1 mark: States that the Fourteenth Amendment applies to state government (and, acceptably, local government via the state).
(6 marks) A student claims: “If a state government arrests someone without lawful justification, the Fifth Amendment is the main due process protection.” Evaluate this claim using constitutional reasoning.
1 mark: Recognises the claim concerns state action (arrest by a state government).
2 marks: Explains that the Fourteenth Amendment Due Process Clause is the relevant due process constraint on states (application point + explanation).
1 mark: Correctly contrasts that the Fifth Amendment constrains the federal government, not states.
1 mark: Uses the “life, liberty, or property” language to connect arrest to deprivation of liberty.
1 mark: Overall evaluation (e.g., the claim is largely incorrect; Fifth would be relevant if federal officers made the arrest).
