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Constitutional Law II
University of Cincinnati School of Law
Schneider, Ronna Greff

Con Law II Professor Schneider- Spring 2008

Supreme Ct Trivia

KNOW THE JUSTICES!!!
For the Test à Study justices, tests, and know religion and speech for school settings.

v Monday Feb 1, 1790 = first day of the Sup Ct
v Ct first met in NYC
v First justice = John Jay
v The current justices, generally
Ø Rehnquist* = generally conservative
Ø Stevens = generally liberal
Ø O’Connor* = most influential. Has a way of swinging votes to her side.
· *retired/dead
Ø Scalia = usually keeps people who agree with him, but doesn’t gain any others. Often is the leader of his position…but does not always succeed in swaying swing votes b/c too extreme. Writes scathing opinions.
Ø Souter = very process driven; more liberal than Reagan expected; must have strong reason to abandon precedents
Ø Thomas = rarely says anything in argument; tends to agree with Scalia except in religion where he is now taking a leadership role. Questions whether there is a difference b/t 5th Amendment and 14th Amendment
Ø Ginsberg = most predictable liberal; concerned with process; litigated gender equality in the past
Ø Bryer = important swing vote in religion area; often swayed by O’Connor (maybe a little more liberal)
Ø Kennedy = all over place; no consistency. Very hard to predict in religion. Very pro-freedom of speech.

Procedural Due Process

v Guaranteed by the 5th Amendment and 14th Amendments
Ø “Nor shall any state deprive any person of life, liberty, or property, without due process of the law” ® 14th Amendment
Ø 5th Amendment ® almost same wording, applies to Federal Government
v Procedural Due Process applies whenever life, liberty, or property
v Due Process is only in regard to the Government!
Ø The government may not take away life, liberty, or property ® you should not be wrongfully deprived
Ø The purpose is FAIRNESS
v Due Process is everywhere! Takes many different forms (In context and degree)
Ø What is fair is different in different situations
Ø Different degrees/nature of deprivation
v What is Constitutionally required (process) may be less than what is given by statute, univ, policy, etc.
Ø If you have a process, that is fair, more people are willing to buy it, thus more process is often given.
v Context Matters!
Ø Less Procedural Due Process in Military, Schools, Prison, etc.

Examining Due Process
1) Is Process Due?
– Was there a deprivation of life, liberty, or property?
– If no, then No, Process is not Due.
2) If Yes to #1, What Process is Due?
– Look to the Eldridge Factors

ã What Process Is Due?

v PROPERTY
· Property rights are determined by STATES (defined by state law and individual to each state)
à Statutes
à Common Law
à Common Practices
à Further defined by Practices and Policies of the state (as per Roth and Perry)
· Property means more than just an expectation of having something, but an “entitlement” to that thing.
à Based on policies and practices such that a reasonable person looking at situation would think that expectation is more than a mere expectation and becomes an entitlement.
· The property interest is in the Economic Benefit
à If there is no loss of salary, there usually is no loss of property

v LIBERTY interest
Ø Federal Law ® FOUND IN THE US CONSTITUTION
· Not States!
Ø Cannot have a conditional limitation placed on the constitutional rights due to acceptance of governmental (or other) benefit (Laudermill)
Ø Physical Liberty: This is violated if you are imprisoned, or even if you are placed in some other situation where you don’t have physical freedom of movement.
Ø Intangible Liberty: A person has a liberty interest to do things intangible—not related to the freedom of movement. Examples are the right to drive, the right to practice your profession, to raise a family.

v Not a complete Property or Liberty right, but mushed together process is due® STIGMA PLUS.
Ø Stigma Plus- Test whereby the lower courts say: “not quite a property right, but something; not quite a liberty right, but something; combine both and have a full right protected by due process”
· Used generally for reputation
· Case Where Kids Get Expelled from High School
à A partial liberty interest (reputation to colleges)
à Decided on a property interest (all states have a statute requiring education, therefore there is a property interest in going to school, expulsion requires due process)
· Demotion
à Deprivation not quite a property interest
à Harm to reputation (“demoted for incompetence”) a partial liberty interest
à Combination of the two brings requirement of due process

v Goldberg v. Kelly
Ø Benefits are a type of property, protectable by due process.
Ø Court must have an evidentiary hearing before benefits could be terminated.
Ø If you’re applying for gov benefits, but haven’t received them yet—they’re not a property interest. But if you’re already getting benefits, it’s probably the case that there’s a property interest in continuing to get them, so that the government cannot terminate those benefits without giving procedural due process.
Ø However, a statute can say that the benefits can be taqken way at any time and that’s ok.

v Board of Regents v. Roth
Ø Prof. Given a one- year contract, school did not renew it with no reason.® Court held that the Prof had neither a liberty nor property interest in being rehired, and emphasized the nature of his interest.
Ø Seemed to suggest that he may have a property interest if his reputation had been damages, but found that it was not (STIGMA PLUS)® See Above
Ø Needs to be a presently enjoyed interest

and an opportunity to present his side of the story.
Ø Compare with Horowitz- there the suspension was less than 10 days- more weight on the private interest; here the government has more of an interest b/c of the long suspension period.

v Two parts of Due Process Framework
Ø Opportunity to be heard (and told of gripe)
Ø Impartial decision-making

v Generally, need to have a pre-deprivation process, but in limited circumstances can have a post-deprivation process (public welfare reasons)

Substantive Due Process

Incorporation
v Almost every right in the Bill of Rights (not 7th) apply to the states; they are “incorporated” in the 14th Amendment
v Consider 5th and 14th Amendments the same

v Substantive Due Process (SDP) not expressly found in the Constitution
Ø We are construing the Constitution to fit this.
Ø Liberty is the essence of SDP.
Ø Use of substantial due process enables judges to, in a sense, “make up the law,” becoming supra-legislative
Ø Some argue that in order to make a substantive right legitimate, you have to find a contextual document giving the imprimatur of the drafters to the right (hard as constitutional proceedings kept secret)

v First look at if you’re dealing with a fundamental or non-fundamental right
v Non-fundamental: economic regulation; ‘mere rationality’ test. The state has to be pursuing a legitimate governmental objective, and is doing so with a means that is rationally related to that objective.
v Fundamental: strict scrutiny; Only if the gov action is necessary to achieve a compelling governmental objective can a gov avoid violating the due process clause.

Economic Substantive Due Process

Path To Lochner

v Slaughter-House Cases
Ø Court had to decide whether LA could give a monopoly on New Orleans area slaughterhouses to a certain company. Held that this did not violate due process. One dissenter suggested that this deprived prospective slaughterhouse owners of both liberty and property interests but the majority rejected this view on the theory that the due process clause only protects against procedural due process.
Ø Early after the 14th Amendment, the Court seemed reluctant to conclude that it might limit states’ substantive powers.