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Both the Fifth Amendment and the fourteenth amendment protect "life, liberty or property" against deprivation "without due process of law." At least according to the constitutional text, when citizens seek to challenge a government's action as a violation of the due process clause, they must adduce some interest in "life, liberty or property" of which they have been deprived.

In the field of procedural due process of law, the Supreme Court traditionally read the phrase "life, liberty or property" as an undifferentiated whole, giving individuals the right to appropriate notice and hearing whenever the government subjected them to "grievous loss." This broad interpretation, however, was often limited by the right-privilege distinction, according to which benefits that the government was not legally obligated to grant could be denied or terminated without constitutional constraint. Thus, a "grievous loss" occasioned by a denial of "largess" would not trigger constitutional requirements of fair procedure under the due process clause.

In the years following world war ii, as the involvement of government in social welfare programs and the domestic economy continued to increase, it became clear that government allocation of largess constituted a powerful mechanism for government oppression if left unconstrained. In goldberg v. kelly (1970), in the course of an opinion imposing constitutionally mandated procedural requirements on the termination of welfare benefits, the Court announced in obiter dictum the elimination of the largess or privilege exception to the demands of due process. The claim that "public assistance benefits are a privilege and not a right" was unavailing, according to Justice william j. brennan, because "welfare benefits are a matter of statutory entitlement for persons qualified to receive them," functioning more like "property" than "gratuity." The loss of benefits imposed a "grievous loss" and thus called forth the demands of due process.

Two years later, in board of regents v. roth (1972) and Perry v. Sinderman (1972), the Court moved the concept of "entitlement" from the margins of due process doctrine to its core. In passing on the claims of untenured professors employed by state colleges to hearings before being dismissed from their posts, the majority opinions of Justice potter stewart took the position that it was not the "weight" of interests affected by public action that invoked the protection of due process but their "nature." Rather than evaluating the "grievousness" of injuries inflicted by discharge, the Court required the instructors to demonstrate that their discharge amounted to a deprivation of technically defined "liberty" or "property."

The liberty protected by due process was delineated in Roth as a matter of federal constitutional law. The Court referred to historically rooted concepts of liberty: beyond freedom from bodily restraint and assault, it included the "privileges long recognized as essential to the orderly pursuit of happiness by free men." Property interests, on the other hand, were said to find their source outside the Constitution in "rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Beyond the areas protected as liberty, therefore, an entitlement grounded in "some independent source such as state law" was a necessary condition for a claim to procedural due process protection. Because under state law Roth's employment was terminable at will, he had no property entitlement upon which to base his demands for due process. The Court left it open for Perry to show some "binding understanding" not embodied in the written terms of his contract that could support a "legitimate claim of entitlement."

In subsequent cases, the Court clarified the proposition that legislative alteration of the terms of the entitlement does not trigger a requirement of notice and hearing, but only administrative action predicated upon alleged failures to meet the terms of the entitlement. Decisions involving prison release and good-time credit programs, like Wolff v. McDonnell (1974) and Greenholtz v. Inmates of Nebraska Penal and Correctional Complex (1979) have extended the entitlement concept to conditions of liberty conferred by state laws or regulations. A hearing before deprivation of credit toward release or other prison perquisites granted to a duly sentenced prisoner is required only when the law granting the liberty is sufficient to vest an entitlement.

The reliance on positive law entitlements outside of the Constitution to define the applicability of constitutional protection forces the Supreme Court to spend considerable effort defining what constitutes a sufficiently clear and binding entitlement to invoke the protection of procedural due process. In Roth the Court differentiated between an unprotected "unilateral expectation" and a "legitimate claim of entitlement" that could support a property interest. Subsequent opinions have looked primarily to statutes, regulations, and contractual provisions to draw the line of demarcation, but have not required great specificity of entitlement to generate protection. Positive law that leaves official decision makers entirely unconstrained in dispensing benefits or employment has been held to create no protected interests; when criteria in positive law provide substantive limitations on official discretion binding on the decision-makers, even standards as vague as "good cause" or "probable ability to fulfill the obligations of a law abiding life" have enabled citizens to claim the protection of due process.

A great deal has been held to turn on the particular official choice of language, as well as state court glosses on it. The difference between benefits that "shall be granted if" and that "shall not be granted unless" particular criteria are met can lead to outcomes that vary considerably among cases that seem otherwise quite similar. Under current doctrine, policymakers who seek to control the decisions of street-level bureaucrats with written criteria for actions must pay the price of providing due process to the citizens whom those decisions affect. Given the rule-governed nature of most modern bureaucracies, this doctrine means hearings are widely available. It also means, however, that policymakers who seek to escape federal due process constraints have an incentive to leave their subordinates entirely without formal guidance.

The reliance on positive law in defining entitlements has led to a doctrinal conundrum. It is not uncommon for the very statute or regulation that defines the property or liberty entitlement to provide procedures to terminate that interest. In these cases, it has been argued that the entitlement protected is simply the entitlement to retain the benefit until it has been terminated in accordance with statutory procedures. If those procedures have been followed, the argument goes, termination deprives the citizen of no property and federal due process can require nothing more.

Whatever its logical appeal, this argument, originally articulated by Justice william h. rehnquist in his plurality opinion in arnett v. kennedy (1974), is an invitation for government to eliminate the constraints of due process in the administration of statutorily created interests by attaching nugatory procedural protections to their statutory definition of interests. The Court, in Cleveland Board of Education v. Loudermill (1985), acknowledged this danger in forcefully rejecting the Rehnquist argument. Justice byron r. white wrote for eight members of the Court that once the positive law of a state lays the groundwork for an entitlement, the constitutionally mandated procedures for terminating that interest were unaffected by the procedures that a state might attach. Although state law determines whether an individual is entitled to the protections of due process by defining their entitlements, the Constitution defines what due process requires. "The categories of substance and procedure are distinct," the Court held. "Were the rule otherwise, the due process clause would be reduced to a mere tautology."

Seth F. Kreimer


Monaghan, Henry P. 1977 Of Liberty and Property. Cornell Law Review 62:401–444.

Smolla, Rodney 1982 The Reemergence of the Right-Privilege Distinction in Constitutional Law: The Price of Protesting Too Much. Stanford Law Review 35:69–120.

Tribe, Laurence H. 1987 American Constitutional Law, 2nd. ed. pp. 663–714. Westbury, N.Y.: Foundation Press.