Constitutional Law Foundations 5 - Procedural Due Process

Introduction to Due Process

  • Historical Context:
    • Original 13 colonies governed by a king across the ocean.
    • The American Revolution led to independence.
    • The Constitution was drafted to prevent tyranny.
    • Bill of Rights (first ten amendments) protected individual rights.
  • Fifth Amendment:
    • Protects against deprivation of life, liberty, or property without due process.
    • Originally applied only to the federal government.
  • Fourteenth Amendment:
    • Extended due process protections to state and local governments.
    • Mirrors the Fifth Amendment.
  • Due Process Clause:
    • Part of a broader protection package ensuring a functional democracy.

Procedural Due Process (PDP)

  • Two Flavors:
    • Substantive due process (set aside for this discussion).
    • Procedural due process (focus of this discussion).
  • Definition:
    • PDP concerns the procedures the government must follow when depriving someone of life, liberty, or property.
    • Fifth Amendment applies to federal actions.
    • Fourteenth Amendment applies to state and local actions.
  • Key Point:
    • The government isn't prohibited from taking life, liberty, or property, but must use fair procedures.
  • Two Main Questions:
    • Has there been a deprivation of life, liberty, or property?
    • If so, what procedures are required?

Defining Life, Liberty, and Property

  • Life:
    • Straightforward.
  • Liberty:
    • Preamble's Purpose: Securing liberty.
    • Not defined in the Constitution.
    • Supreme Court Clarification: Deprivation of liberty is a significant loss of freedom of action or a loss of a significant freedom provided by the Constitution or statute.
    • Examples: Institutionalization, imprisonment, taking away the right to vote or travel.
  • Property:
    • Includes belongings (e.g., textbooks).
    • Includes government benefits if there's a legitimate claim or entitlement.
    • Examples of Government Benefits:
      • Social Security payments.
      • Attending public schools.
      • Government licenses.
      • Government jobs.
    • Entitlement to Government Benefit:
      • Exists if there's a reasonable expectation of continued benefit based on law or policy.
      • Example 1: State law guaranteeing education until 18 gives students a property interest.
      • Example 2: Teacher with a contract stating they can only be fired for good cause has a property interest in continued employment.
      • Employee at will: No reasonable expectation of continued employment, no property interest.

Deprivation and Government Action

  • Deprivation Requirement:
    • PDP requires a deprivation of life, liberty, or property.
    • Government Action: Must be the government acting (state action doctrine).
    • Government Negligence: Generally not enough to trigger PDP.
    • Requirement: Intentional or reckless government action.
      • Example (Accidental): Renewal notice for bar dues lost in the mail; not a PDP trigger.
      • Example (Intentional): State revoking a license because they dislike the licensee's fashion choices; PDP triggered.
  • Individual Basis:
    • Deprivation must be on an individual basis to trigger PDP.
    • Example: State repeals marijuana licenses; no individual hearing required as the deprivation wasn't individual.

Required Procedures

  • Minimum Requirement:

    • Fair and unbiased decision-maker.

  • Balancing Test:

    • The court uses a balancing test to determine the type and extent of process needed, weighing three factors.
    • Factor 1: Importance of the interest to the individual.
    • Factor 2: Ability of additional procedures to increase accuracy of fact-finding.
    • Factor 3: Government's interests (e.g. saving time and money).
      • Scales may tilt toward more process if the individual's interest is strong and additional procedures would help the fact finder.
      • Scales may tilt toward government if government's interest is very strong.

  • Examples:

    • Suspending a student: Notice and hearing usually required before suspension.
    • Imminent danger: Immediate suspension may be permissible with a post-suspension hearing.
    • Driver's license: Prior hearing usually required before termination.
    • DUI refusal: Immediate suspension may be allowed with a post-suspension hearing.

  • General Rule:

    • Notice and chance to respond are usually required before termination of liberty or property interests.

Bottom Line

  • The government can sometimes take life, liberty, or property, but must follow proper procedures.