Con Law II
Professor Olken
Fall 2010
Due Process
The government shall not deprive any person of life, liberty, or property without a fair opportunity to affect the judgment or result.
I. Procedural Due Process- Refers to the procedures that the government must follow before depriving a person of life liberty or property.
Ask yourself:
1. Is there a life/liberty/property interest?
a. Has there been a deprivation of
i. Life
ii. Liberty- right to marry, right to work, etc. (i.e., more than freedom from constraint)
iii. Property- not created by constitution, but protected by it
2. If there is, what process is due? (Now judicial balancing)
3. Balance pl’s interest v. States interest
a. Plaintiffs side
i. Economic hardships/magnitude of interest
ii. Harm to reputation
iii. Risk of erroneous deprivation
b. States side
i. 10th amendment
ii. Cost/ administrative burden
iii. Efficiency- Save time and money. Giving a hearing at every single opportunity would slow the system and cost much money
iv. Time consumption
Goldberg v. Kelly- Whether NY can terminate welfare payments to specific individuals without notice or an evidentiary hearing?
Individuals have a property interest in these benefits and the government must provide a hearing before terminating benefits
Board of Regents v. Roth- Roth hired to teach at Wisconsin State for one year, and then told he wouldn’t be retained. Demanded to know why, which was denied, and he had no opportunity to challenge it.
There was no liberty interest, because he could get another job.
There was no property interest; there must be a legitimate unilateral expectation, a desire or need is not enough. Here the teacher did not have a reasonable expectation of being rehired. Property interest ended w/ contract.
Cleveland BofEd v. Loudermill- Loudermill was fired and was not afforded a hearing. Is there a life/liberty/property interest?
There is a property interest. This property interest is tangible because Loudermill is a classified civil servant which means he has to have a reason afforded to him.
What process is due?
Plaintiff: Magnitude- he needs his job. Money. Risk- bad reputation when looking for another job.
State: cost- administrative burden to get lawyer involved. Easier and more efficient to just tell the person you will not need to return.
Pl’s interest outweighs the state
II. Substantive Due Process- asks whether the state has the power to regulate certain rights and subject matters.
Fundamental right yields strict scrutiny.
Govt. wants rational basis
reasonable
legitimate connection b/t means and end
Pl wants strict scrutiny
compelling govt. interest (direct relationship b/t regulating that right and govt. powers)
least restrictive means
Lochner v. NY- New York law that said “ no employee shall work in a biscuit, bread, or cake factory more than 60 hours
States argument- reasonableness
Prevent over-exertion, stress and losing sleep is unhealthy; prevent mistakes.
Safety- if tired, by not paying attention he can hurt himself.
Moral employer is taking advantage of the employee.
Social welfare- workers have less time to spend with their families. Cannot do things that normal workers can do.
Core Values:
Broadly construe the 10th.
Labs of democracy- this is a local issue. Let us handle this. More efficient to handle this on a local level.
Tyranny- states suppose to come in and regulate. Where is the democracy? Want the SC to be deferential toward the state.
Pl’s argument-
Em
utiny.
States argue- no fundamental right of privacy, thus rational basis. Try to take out of the realm of privacy and make it a garden economic issue. It’s about buying goods.
Core values: accuse justice of reading their own socio economic views. They are tyrannizing the states. They are ejecting their own values into the reading of the constitution.
Pl argue- implied fundamental right, penumbras, 9A, 14a. so SOR is strict scrutiny. Would argue that privacy is a right deeply rooted in our nation’s history, even though not explicitly in Constitution.
Penumbra approach is saying that there are areas in the BoR that are present but not mentioned. There are zones around the amendments that extend rights. These zones are not explicitly stated, but can be implied.
Core values: govt. is being tyrannical in making the choice for a woman
Avenue of Privacy- this is about personal autonomy to make or choice or a reflection of intimate thoughts or dignity as a person.
IV. Right to Die-
States argue- nofundamental right; not specifically in the constitution, not within the penumbral rights, definitely not in the historical traditions
SOR is rational basis. State has a reasonable interest in maintaining morals, health, safety and well-being; protecting the vulnerable. And this is a legitimate means in protecting interest.
Core values: Labs of democracy (judicial restraint and promotion of local democracy) and legitimacy of state police powers.
