o Individual Rights
§ Three Tiers of Scrutiny
· Minimal Scrutiny/Rational Basis – government action is presumed valid and will be struck down only if challenger can show that the action is not rationally related to a legitimate purpose
· Intermediate Scrutiny – government action is presumed invalid and will be upheld only if government can prove that its action is substantially related to the accomplishment of an important government interest
· Strict Scrutiny – government action is presumed invalid and will be upheld if government can prove that its action is necessary to achieve a compelling objective
o “No person shall be deprived of life, liberty, or property without due process of law.”
§ Requires state action; cannot be the action of a private party
§ Fifth Amendment – applies to federal government
§ Fourteenth Amendment – applies to the states
o PROCEDURAL DUE PROCESS
§ Consists of…
· Opportunity to be heard
· Is there a life, liberty or property interest at stake (or is the government infringing upon such an interest)?
· If so, what sort of notice and opportunity to be heard is required?
o Matthews v. Eldridge Test (see below)
§ Defining Property & Liberty Interests
· Property interests are created by state or federal statutory law and contracts (Loudermill; Roth; Perry)
· The amount of process that is due is defined by the Constitution
· Property Interests
o Board of Regents v. Roth (1972)
§ SC rejects a former university employee’s claim that the university’s failure to give him either an explanation of or a chance to contest the non-renewal of his employment contract violated due process
§ The nature of the interest at stake is what’s important. “To have a property interest in a government benefit, one must have more than a unilateral expectation of it. He must have a legitimate claim of entitlement to it.”
o Perry v. Sindermann (1972)
§ Professor at junior college not rehired when fixed term of contract expired; claimed that school had created de facto tenure system by informing faculty its wishes for each member feel “that he has permanent tenure” so long as there is demonstrated good performance and attitude
§ SC says claim properly raised an issue of fact of whether school’s statement produced “a legitimate claim of entitlement to job tenure.”
o Bishop v. Wood (1976)
§ The “sufficiency of the claim of entitlement to a protected property interest must be decided by reference to state law.”
o **Matthews v. Eldridge (1976)
§ Respondent Eldridge commenced this action in District Court to challenge the constitutional validity of the administrative procedures established by the Secretary of Health Education and Welfare for establishing whether there exists a continuing disability entitling a recipient to Social Security Disability (SSD) benefits. Eldridge was notified his benefits would terminate without an opportunity for a prior hearing.
§ SC held that no pre-termination hearing was required, and set out a three-part balancing test to determine when and how much process is due
· **See Balancing Test below
o Cleveland Board of Education v. Loudermill (1984)
§ A state Board of Education fired an employee, without first giving him a hearing, for lying on a job application. Under Ohio law, the employee could only be terminated for cause. Respondent challenged the constitutionality of the termination procedures.
§ By law State law, such employees could only be terminated by cause and with a pre-termination hearing. Therefore, since Respondent was conferred a right to employment by State law, and Respondent was deprived of his right to employment without a pre-termination hearing, the government unconstitutionally deprived Respondent of his right to property under the Fourteenth Amendment Due Process Clause of the Constitution.
o Castle Rock v. Gonzalez (2005)
§ A benefit is not a protected entitlement if government officials may grant or deny it in their discretion (ex. enforcement of restraining orders)
· Liberty Interests
o When Does a Protectable Liberty Interest Exist?
§ Change in legal status = loss of liberty
· Paul v. Davis – loss of reputation alone is not enough
· Constantineau – loss of reputation plus loss of previously held right, i.e., ability to purchase alcohol, is loss of liberty
§ Liberty interests can arise from statutes, contracts or common law, but also may arise from the Constitution (Vitek)
o Paul v. Davis (1976)
§ The Petitioner, Paul (Petitioner), as the police chief, issued a bulletin to area storeowners warning of persons known to be shoplifters. The Respondent, Davis (Respondent), was on that list. He claims his reputation was injured by this action.
§ Davis argued he was entitled to procedural due process before his “liberty” interest in his reputation was injured
§ SC rejected argument as a slippery slope; “…reputation alone, apart from some more tangible interests such as employment, is neither ‘liberty’ nor ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.”
§ Court distinguished this from Wisconsin v. Constantineau where a WI law that banned individuals from purchasing alcohol for a year if he or she made themselves a danger to the public; there, an actual right – to obtain liquor – was infringed upon without process
o Vitek v. Jones (1980)
§ Transferring a prisoner from the prison to a mental hospital entitles the prisoner to due process, because there is a depletion of rights afforded when housed at a mental hospital as compared to a prison, or a “loss of residual liberty”
§ How Much Process is Due?
· Matthews v. Eldridge Balancing Test
o How important is the private interest that will be affected by the official state action?
o How great is the risk of erroneous deprivation of such interest through the procedures used and what is the value of additional procedural safeguards?
o How important is the government’s interest, including the function involved, and the fiscal and administrative burdens that the additional procedural requirement would entail?
o SUBSTANTIVE DUE PROCESS
§ Consists of…
· Judicial protection for unwritten liberty interests
o Some liberties not mentioned in the Constitution but identified by the Court are considered so fundamental to the idea of liberty that their invasion by government is presumed to be void
d public school
§ Right of parents to direct the upbringing and education of their children
o Skinner v. Oklahoma (1942)
§ Struck down mandated sterilization of three-time felony offender on equal protection grounds
§ Fundamental right of marriage and procreation
· Sources of Fundamental Rights?
o The unwritten right of privacy is part of the penumbra that surrounds other expressly enumerated rights in the Bill of Rights and is applicable to the States via the 14th Amendment’s Due Process Clause
o The right of marital privacy is based on history and tradition
o The right of privacy is one of the un-enumerated rights retained by the people under the 9th Amendment
· Origins: Contraceptive Use
o Griswold v. Connecticut (1965)
§ Appellants were charged with violating a statute preventing the distribution of advice to married couples regarding the prevention of conception. Appellants claimed that the statute violated the 14th Amendment to the United States Constitution
§ Cases such as Pierce and Meyer suggest that specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that help give them life and substance
§ Various guarantees create zones of privacy
§ The right to privacy in marriage is not specifically protected in either the Bill of Rights or the Constitution. Nonetheless, it is a right so firmly rooted in tradition that its protection is mandated by various Constitutional Amendments, including the 1st, 9th and 14th Amendments.
o Eisenstadt v. Baird (1972)
§ Court struck down on equal protection grounds a MA prohibition on the distribution of contraceptives to unmarried persons
§ “It is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child…”
o Roe v. Wade (1973)
§ Appellant Jane Roe, a pregnant mother who wished to obtain an abortion, sued on behalf of all woman similarly situated in an effort to prevent the enforcement of Texas statutes criminalizing all abortions except those performed to save the life of the mother.
§ Women have fundamental right to choose whether to terminate a pregnancy
§ Trimester Framework
· First Trimester: no permissible government restrictions
· Second Trimester: regulations reasonably related to protection of mother’s life and health are ok
· Third Trimester (after fetal viability): state can regulate or ban abortion if law is “narrowly tailored to uphold a compelling state interest” except for preservation of life or health of mother