Due Process, Procedural

Due Process, Procedural The concept of due process derives from the Magna Carta (1215), the great charter of English liberties whereby the nobles limited the king's authority. Its phrase “law of the land” was transformed over the years to “due process of law,” a phrase included in 1692 in a Massachusetts statute. The Fifth Amendment of the Constitution (ratified 1791) requires that the federal government not deprive any person of “life, liberty, or property without due process of law.” The same language is included in the Fourteenth Amendment (ratified 1868) as a constraint on the states.

The central aim of due process doctrine is to assure fair procedure when the government imposes a burden on an individual. The doctrine seeks to prevent arbitrary government, avoid mistaken deprivations, allow persons to know about and respond to charges against them, and promote a sense of the legitimacy of official behavior.

Procedural due process does not prevent the government ultimately from making a deprivation. The notion of substantive due process does place substantive limits on official power, whereas procedural due process is concerned solely with the manner in which the government acts. This distinction appears in Londoner v. Denver (1908) and Bi‐Metallic Investment Co. v. State Board of Equalization (1915). Taken together, these cases distinguish between the situation in which government singles out an individual for a deprivation based on the facts of a case, which triggers procedural due process requirements, and a broad rule affecting large numbers of people, which does not. In the former cases, the government must provide the procedural protections of notice and hearing; as the Supreme Court held in Grannis v. Ordean, (1914), “[t]he fundamental requisite of due process of law is the opportunity to be heard” (p. 394).

A governmental deprivation of an individual's property will implicate due process. Property has a common‐law meaning, including land and personal property. In the 1970s, the Court articulated a “new property” concept, which includes government‐provided benefits, licenses, or statuses (such as that of public employee) that have value, are relied upon by individuals, and can be called statutory, regulatory, or contractual entitlements. A statutory benefit such as welfare (Goldberg v. Kelly, 1970), a driver's license (Bell v. Burson, 1971), the expectation of continued employment as a tenured professor (Board of Regents v. Roth, 1972), and the status of a civil servant protected from at‐will dismissal (Arnett v. Kennedy, 1974), are examples of such “new property” interests. The Court held in Roth that the mere hope or unilateral expectation of some property interest is not enough.

The term “liberty” has its own history. In the Fourteenth Amendment, “liberty” has been held to incorporate major protections of the Bill of Rights. “Liberty” also has an independent meaning in, for example, the criminal context. Basic freedom from incarceration, as well as a parolee's interest in staying on parole (Morrissey v. Brewer, 1972), are liberty interests. Liberty in the civil context includes certain personal interests in privacy, which were recognized in a series of substantive due process cases, notably Roe v. Wade (1973). In civil cases involving procedural claims, several interests have been recognized as “liberty”—such as the interest in parental status (Lassiter v. Department of Social Services, 1981) or a school child's interest in being free from corporal punishment (Ingraham v. Wright, 1977).

The Court in Cleveland Board of Education v. Loudermill (1985) separated the issue of whether due process is triggered from the question of how much process is “due.” A court is to weigh the extent of an individual's interest in additional procedure, as well as its value and cost. Mathews v. Eldridge (1976) held a post‐termination evidentiary hearing to be sufficient due process in a disability‐benefit termination case. Mathews gives courts much leeway. Sometimes, a fairly full, trial‐type hearing is required. At other times, a court simply requires basic notice and opportunity to speak.

The many due process cases that come before the federal courts—involving prisons, schools, social security, and public employment, among other areas—testify to the continuing centrality of this area of law and the undiminished controversy surrounding it. Increasingly, two opposing visions dominate: a personal participation model, which stresses dignitary values and greater procedure, and a bureaucratic model, which stresses efficient and cost‐effective decision making. This tension is likely to persist.

Thomas O. Sargentich