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Constitutional Law I
Southern Illinois University School of Law
Buys, Cindy G.

Con Law
Fall 2011
DUE PROCESS RIGHTS-“no person shall be deprived of life, liberty, or property without DP of law”
Important Principles to Keep in Mind
·         DPC protects against the government
o    All of the individual rights conferred by the Const upon individuals protect only against government action
o    They DO NOT protect a person against acts by other private individuals
o    Ex:
§  Free speech in constitution
·         Bars the state from punishing me for advocating socialism
·         Doesn’t apply if employer fires me b/c I’m a socialist
§  Race
·         Forbids govt from not giving me license b/c of my race
·         Does not bar a private employer form firing me on account of my race
o    Most of what we think of as individual rights are protected by STATUTE…not the constitution
§  It may be against the law for employer to fire you b/c you are black, but that comes from statute…not the constitution
·         Not Directly Applicable to the States
o    Bill of Rights do not directly apply to the states
o    HOWEVER…14th Amendment’s DPC
§  Has been interpreted to make nearly all Bill of Rights guarantees applicable to the states
§  (Incorporation discussed more below)
·         Levels of Judicial Scrutiny
o    Minimal scrutiny (default)
§  Government action is presumed valid unless
·         challenger can prove that the action is not rationally related to a legit state purpose
§  Used if
·          govt action infringes upon some unremunerated right
·         there is a non-fundamental right at issue
o    Intermediate scrutiny
§  Govt action is void, unless
·         the govt can prove, GENERALLY, that its action is substantially related to the accomplishment of an important actual state interest
o    Strict Scrutiny
§  Govt action presumed void unless
·         the govt can prove that its action is necessary to achieve a compelling govt objective
·         Used if
o     govt action infringes upon some EXPLICITLY guaranteed right (free speech)
o    fundamental right is involved
·         2 Due Process Clauses
o    5th Amendment
§  Applies against FEDERAL government
o    14th Amendment
§  Applies to the states
o    *Any state action that would be forbidden under 14th DPC is also forbidden to fed govt by 5th DPC
·         2 Types of Due Process
o    Procedural
o    Substantive
The 14th Amendment
·         3 Rights
o    1) The right to Due Process
o    2) The right to Equal Protection
o    3) The right to Privileges and Immunities of National Citizenship
I. Procedural Due Process
·         Requirements/Limits
o    DP requires that before a person is deprived of life, liberty, or property he must be
§  1) Given notice of the case against him and
§  2) Opportunity to meet it
o    Right to Due Process is NOT a general right
§  Right to DP arises only when: life, liberty, or property is at stake
o    Only applies to individuals
§  Applies one case at a time—one P at a time
·         Analysis of Procedural Due Process
o    1) Is there a “life,” “liberty,” or “property” interest at stake?
§  Look to statutes and CL
o    2) If so, what sort of notice and opportunity to be heard constitutes DP?
§  What type of procedures must be given to meet DP?
·         Look to Constitution for procedural standards
§  This is a sliding scale-some get more and some get less
Step 1: Is there a life, liberty or property interest at stake?—Defining Interests to be Protected by DP
·         Property
o    Look to
§  State statutes, federal statutes, CL, K
§  DO NOT look to constitution
o    Old Rule: Goldberg v. Kelly
§  Any govt benefit that was extremely important to its recipient was a form of liberty or property to which due process attached
·         Subjective view
·         Used to look at the “importance” of the government benefit given
§  Welfare case
·         If the govt took away the welfare benefits w/out DP, that would deprive P of his means to live
·         Welfare was very important to the P, so the ct found it to be a property interest which required DP
§  Not workable
·         Measuring subjective importance to individuals is not the easiest thing to do for cts
·         Still use this standard to determine how much notice and opportunity is due
o    New Rule:  Look to—What were the legitimate expectations of the person receiving the benefits?
§  Then look to the state, federal, CL to define what these ‘reasonable expectations’ are
§  Government jobs
§  Board of Regions v. Roth
·         School professor was an at will employee
·         No expectation that the employment K would be renewed after 1 year
·         School was allowed to dismiss professor b/c he was not entitled to keep his job…he had no expectation of being able to keep his job
§  Perry v. Sindermann
·         Employer told its employees that so long as employees did a good job, they would keep their job—impression of having permanent tenure
·         The employees had an expectation of keeping their job, so they had a legit property interest employee’s job couldn’t be taken w/out DP
§  Cleveland Board of Education v. Loudermill
·         Facts
o    Loudermill was security guard who did not disclose his larceny felony on his application
o    Claimed he thought it was a misdemeanor
o    Fired
o    Admin hearing
§  Sent him letter informing him of termination
§  No hearing prior to dismissal in order for him to give his argument
·         Entitled to hearing AFTER he was dismissed
·         Issue/Holding/Reasoning
o    Property interest in job? – Yes
§  Looked to Ohio State Law
·         State statute said employees can only be removed for good cause = expectation of continued employment = property interest
o    Statute provided admin review sufficient for DP? – NO
§  Need to look the FED law or CONSTITUTION to determine how much DP should be given (ct doesn’t go any further than this)
§  Constitution provides the floor…the minimum guarantees for the procedures that are due
·         Liberty
o   Where to look to define liberty (where it can be found-from Vitek case)
§  State/Fed statutes, CL, and CONSTITUTION
§  Any in property plus CONSTIT
o    Defs-stick with these in defining a liberty interest
§  Government actions that alter one’s legal status under positive law
§  Other government actions that may not actually alter status, but is such a massive invasion of liberty…then DP attaches
§  Change in legal status = loss of liberty
o    Cases
§  Paul v. Davis
·         Facts: arrested for shoplifting, charges dropped, placed on active shoplifters list, said it ruined his rep and was entitled to DP
·         Held
o    Loss of reputation is not enough. 
o    Must also have a change in status.
§  Wisconsin v. Constantineau
·         Facts: WI law said if you get super drunk and endanger people you can be kept from purchasing alcohol for one year
·         Held
o     Loss of reputation + loss of ability to drink liquor like everyone else = change in status.
o    So DP was required
o    Prison Cases
§   Meachum v. Fano
·         Facts: shifting prisoner from med security prison to max security
·         Held
o    No liberty interests at stake…he already had his liberty taken when put in first prison
§  He had proper DP once already
§  Vitek v. Jones
·         Facts: person being transferred from prison to mental hospital
·         Held: DP attaches b/c more hard

ghts are not directly applicable to the States, but only to the Fed govt (Barron v. Baltimore)
o    SC held that Bill of Rights limited only the federal government, not state or municipal governments
o    Privileges and Immunities Clause of 14th
§  Slaughter-House Cases (old rule)
·         Cannot get the Bill of Rights applied to states through the PIC of 14th
o    14th amend was intended for slave/race disputes only
§  Ct hints that could be used for other things but not this
·         PIC of 14th applies only to federal
The 14th Amendment does not create any new rights under its privileges and immunities clause
the rights under the 14th Amendment PIC are the same as the rights under the Article IV PIC
New rights cannot be recognized under the PIC ; only rights which previously existed under the Article IV PIC are protected under the 14th Amendment PIC.
Article IV protects individual rights from states' discrimination which gives its own citizens better treatment than citizens of other states
The protected individual rights are:
right to conduct business in another state
access to courts in another state
ownership of property in another state
§  Saenz v. Roe (New rule)
·         Right to travel is protected under 14th Amendment PIC
·         Invalidated Slaughter-House by saying some Bill of Rights are applicable to states
·         BUT…Effect of Due Process Clause
o    Enactment of the 14th Amendment changed this
o    14th amendment directly imposes on the states and local governments the requirement that they not deprive anyone of life, liberty, or property w/out due process
·         Application of Bill of Rights to States
o    SC has never said that DP requires the states to honor the Bill of Rights as a WHOLE
o    Selective Incorporation is  used
§  Each right is examined to see whether it is of “fundamental” importance
§  If so, the right is “selectively incorporated” into the meaning of the DPC under 14th and is thus made binding on the states
o    Total Incorporation (Blackmun)
§  The entire bill of rights applies to the states—NEVER been adopted
·         NOW…Nearly all Rights are Incorporated-selective approach use today
o    By now, nearly all rights contained in Bill of Rights have been incorporated one by one
o    Only rights of 1st 8 Amend NOT included and NOT applied to states
§  House soldiers-3rd
§  Grand Jury—part of 5th
§  Right to Jury in Civil Cases—7th
§  Excessive Fines—8th   (Note: 8th’s right against excessive bail does apply to states)
·         Jot for Jot Incorporation
o    Once a given right is made applicable to the states, the scope of that guarantee is interpreted the same way for the states as for the federal government
o    Why we have this
§  To avoid different outcome in federal and state governments
o    Exception
§  Conviction of a criminal offense by less than unanimity of jurors
·         Fed—must reach unanimous verdict
·         State—convict D w/less than unanimity