The Due Process Clause serves two basic goals. One is to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of interests. The other goal is to make people feel that the government has treated them fairly by, say, listening to their side of the story.
The Due Process Clause is essentially a guarantee of basic fairness. Fairness can, in various cases, have many components: notice, an opportunity to be heard at a meaningful time in a meaningful way, a decision supported by substantial evidence, etc. In general, the more important the individual right in question, the more process that must be afforded. No one can be deprived of their life, for example, without the rigorous protections of a criminal trial and special determinations about aggravating factors justifying death. On the other hand, suspension of a driver's license may occur without many of the same protections.
The cases on
this page demonstrate the Supreme Court's approach to key questions
concerning procedural due process. Board of Regents v Roth shows how
the Court has defined "property" interests for purposes of the due
process clause. The case involved the decision of a public
college not to renew the contract of an untenured professor. The
Court concluded that the professor had no "liberty" interest in any
specific teaching job, and that he had no "property" interest in his
job because he lacked "a legitimate claim of entitlement" under state
law to his job. The Court noted that he would have had such a claim of
entitlement had he been tenured, because then the college would have
had to make a specific showing of poor performance in order to sustain
its dismissal. Without a legitimate claim of entitlement to his
job, the Court reasoned, there is nothing to have a hearing
about. Property interests, the Court stress, must be found in the
statutory or common law of the jurisdiction.
property interests which have their source in state law, the Court sees
"liberty" interests as having their source in the Constitution.
Deprivations of certain basic liberties (such as the freedom to travel,
the freedom to live with and raise children, the freedom from
incarceration, or the freedom to not be subjected to physical violence
or forced medical treatment) will trigger a requirement that the
government afford due process. But not every serious injury
inflicted by the government is necessarily a deprivation of a liberty
interest, according to the Court. In 1971, in Constantineau v Wisconsin, a case
involving a governmental posting of the names of "excessive drinkers,"
the Court concluded that some sort of hearing had to be afforded before
such a list of names could be sent out--an individual has a protected
liberty interest in her good name and reputation, the Court said.
However, five years later in Paul v
Davis, a case involving the government's distribution of a list
of "active shoplifters," the Court reversed course and held that damage
to an individual's reputation--standing alone--is not deprivation of a
protected liberty interest. The Court distinguished Constantineau, now finding that
the individual's additional loss of a right to purchase alcohol was a
key element in the outcome of that earlier case. In Vitek v Jones (1980), the Court
found that due process must be afforded before an inmate in solitary
confinement was transferred from a state prison to state mental
hospital, where he would be forced to undego behavioral
modification. The Court rejected the state's argument that
inmates had already lost their liberty, so that transfer from one state
institution to another shouldn't trigger a requirement of due process.
The last two
cases demonstrate how the Court has balanced individual interests
against government interests to determine how much process is due in
In Mackey v Montrym, the Court
considered whether the state can suspend for 90 days without a prior
hearing the driver's license of a motorist who refused to take a
breathalyzer test following a motor vehicle accident. The Court,
voting 5 to 4, held that the state could immediately suspend licenses
in such cases. The majority gave considerable weight to the
state's asserted interests in removing drunk drivers from highways as
soon as possible and in providing drivers with a strong incentive to
take the test. Although the Court recognized that people today
have a "substantial" interest in keeping licenses to drive, it also
stressed that the risk of erroneous deprivation was low because only
rarely will there be a real dispute as to whether the motorist refused
or did not refuse to take the breathalyzer test. The dissenters
saw a greater likelihood of factual disputes (e.g., did the refusal
follow a clear demand with a warning of the consequences?) and noted
that the state's argument about getting drunks off the road fast was
undercut by the fact that a person who failed the breathalyzer test would
be allowed to continue to drive until his trial date.
In Cleveland Board of Education v Loudermill
(1985), the Court considered whether two school district employees
could be suspended without pay until hearings were held to determine
whether they had, in fact, violated school district rules as the
district had alleged. The Board of Education argued that since it
never had to give its employees ANY right to a hearing, it should have
the flexibility to give them a right to a hearing, but allow a
pre-hearing suspension without pay. The Court rejected this
"bitter-with- the-sweet" approach, and said that the minimum process
due is determined as a matter of federal constitutional law, not state
[No State shall] deprive any person of life, liberty, or property, without due process of law.
What is a
protected "property" interest?
2. How does the Court determine whether an individual interest is a property interest within the meaning of the Due Process Clause? What might create "a legitimate claim of entitlement in law"?
3. How does the Court determine whether an individual interest is a liberty interest within the meaning of the Due Process Clause? Should damage to one's reputation be enough to trigger or due process, or is the Court right in insisting upon a showing of damage to reputation plus the loss of some traditionally recognized right (such as the right to purchase alcohol, in Constantineau)?
4. If a state might create property interests through contracts, why can it not at the same time limit the process it will afford when it takes away those interests it has created?
5. What two factors does the Court look to in weighing an individual interest to determine how much process must be afforded before it is taken away?
6. In weighing an individual interest to determine the amount of process to be afforded, should we look at the importance of the interest in question to the particular litigant before the court, or instead look at the interest's importance to the category of persons who might object to its deprivation by the government?
7. If the government never had to create a property right in the first place, why shouldn't it be free to create the property right ("the legitimate claim of entitlement"), but at the same time limit the amount of process it will extend?