due process.
there are two DP amendments and two types of DP.
5th amd't bars the fed gov't from depriving "life, liberty or props without due process of law."
14th amd't prohibits the states from gov't invasion without due process of law
procedural due process.
the purpose of procedural due process is to identify substantive rights -- life, lib and props -- to assess whether the gov't procedures for taking them away are constitutionally adequate.
(1) what constitutes "life, liberty or property" interests that cannot be taken away by gov't without "due process of law"?
(2) once due process is required, what sort of notice and opportunity to be heard constitutes due process?
notice and opportunity will be the two biggest issues.
defining the interests protected by due process.
three different approaches have been taken by the court
(1) treating gov't benefits as privileges rather than rights
(2) treating gov't benefits as entitlements rather than privileges
(3) deriving the content of property and liberty from cont. external sources, such as K and stats
mcauliffe v. mayor of new bedford: "he may have a const. right to talk politics, but he has no cont right to be a policeman...
you may hae a right to due process if the gov't tretaens to take your car but not if the gov't threatens to fire you. see bailey v. richardson, where gov't employment was considered a privilege (gov't may suspend at its pleasure) rather than a right (may be divested only after an indiv has been afforded DP)
property...
goldberg v. kelly 397 us 254.
facts:
rule (the goldberg principle):"any gov't benefit that was extremely important to its recipient was a form of liberty or prop to which DP attached. the importance of the itnereste was determined a sa matter of const law.
holding: a welfare recipient was entitled to an "envidentiary hearing before the termination of benefits" because "beefits are a matter of stat entitlement for persons qualified to receive them"
bell v. burson.
facts: GA law autmatically suspended the vehicle regis and driver's license of any uninsured motorist who failed to post a security bond to cover the claimed damages in accidents to which he was a party.
holding: DP attached b/c driver's licenses are essential for pursuit of livelihood, and there was no deprivation hearing given
board of regents v. roth
argument that nowadays connection between the gov't and individuals where there is some distinct benefits that have come to be expected
cause requirement question.
cleveland v. loudermill
there's a law in OH that you can only be terminated if you are able to be admin reviewed first.
facts: loudermill was hired as a security job and on his application he said he was never conficted as a felon. but he lied. he was dismissed because of the lie, and not given a 10 day period chance to reply to the charge.
issue: what pretermination process must be accorded a public employee who can be discharged only for cause?
procedure: the trial court dismissed because statute that created the property right in continued employment also specified the procedures for discharge, and because those procedures were followed, loudermill was, by def, afforded all the process due. US says that the legislature's choice of procedures for its deprivation, and stresses that in addition to specifying the grounds for termination, the statute states out procedures by which termination may take place.
rationale: the right to DP is conferred, not by legis grace, but by const guarantee.... legis may not const authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. the litigant must take "the bitter with the sweet"
arnett (cited in loudermill): US agreed that a public employee could be dismissed for misconduct without a full hearing prior to termination.
rule:
castlerock v. gonzales
facts: gonzalez had obtained an order from a CO court restraining her estranged husband from contact, but her husband abducted their daugthers. the police failed to act and the husband murdered the girls. gonzales pled a 1983 that she was deprived DP because the police never heard or seriously entertained her request to protect her/ her children or enforce the US ruled that "a benefit is not a protected entitlement if gov't officials may grant or deny it in their discretion"
procedural due process as to property interests:
as to substantive and legal status: does this equate to a loss of liberty in terms of due process? does the gov't have to give you something to change/ do this?
gov't actions taht alter one's legal status under positive law implicate a liberty interest, but some government actions that may not do so are nevertheless such assive invations of liberty that due process attaches.
paul v. davis
facts:
davis was arrested for shoplifting
vitek v. jones: how much of substance is there left in the liberty interest before due process kicks in?
mathews v. eldridge
economics weight: we can't pay for everybody
erroneous deprivation: fairness and reliability of
substantive due process.
an "ungainly concept" is a sort of non sequitur phrase.
procedures that are suitable, fitting or appropriate -- the procedures that are minially required for fairness.... to identify certain liberties or rights that are not specifically mentioned in the const. and to raise a presumption that gov't interference with those rights is void.
the court is wrestling with how we get from the enumerated first eight amendments to this modern era.
barron v. baltimore
5th amendment was about getting away from the tyranny of britain and protecting the individual from that kind of activity. the court is saying that US is limited by 1-8 amendments, not the states.
the slaughter house cases.
states are named and limited in terms of their due process tasks in amendments 13-15.
LA gave the slaughter houses a 25 year monopoly around new orleans. otehr butchers contended that their 14th amendments rights to be a butcher were violated by LA (the freedom to work).
US rejected this argument. BOR does not talk about your freedom to work.
so before any questions of incorporation, we must consider that we're talking about something sort of beyond the
human chattel bondage is very much beyond your right to butcher. it's not a 13th amd't issue.
your right to butcher is not a sufferage issue, so not 15th amd't.
but as far as DP and P&I... the court has more concern about the citizenship rights
citizenship rights as us citizens: "free men are citizens of the us and of the states where they reside"
the 14th amendment was about without further protection, slaves would be as bad off as they were before abolition.
in terms of incorporation, substantive parts of 14th amend. P&I become right to travel.
bill of rights: what's special about free speech -- the us can't wrap you up and the states
total incorporation v. selective incorporation.
black for total incorporation: all the states should have the BOR because historically, that's what the point was
frankfurther, cardozo for selective incorporation: judicial discretion, which can be good and bad
getting closer to moving the full list of BOR to the states... almost total incorporation. but not exactly. the 2nd amend. is not incorp'd
lochner.
criminally sanctioned statute that bakers can only work 60 hours a week. this is for their safety and public safety.
a combination of the inhaled flour, the long hours
resonable exercise of police power, or a violation of 14th amend DPC
state says that this is protection of labor laws in addition to the health concerns, which is another
the baker argue that the
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