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Protection of Individual Liberties: Due Process

Government action must provide adequate and fair procedures when it intentionally or recklessly deprives a person of life, liberty, or property. This is a two-part analysis:

 

Procedural Due Process

  1. Defined

    Government action must provide adequate and fair procedures when it intentionally or recklessly deprives a person of life, liberty, or property. This is a two-part analysis:

    1. Was there a deprivation of life, liberty, or property?

    2. What procedures are necessary?

  2. Deprivation

    1. Of Liberty: A deprivation of liberty occurs if a person has been imprisoned, deprived of physical freedom of movement, or loss of other significant freedom.

      • Example: Loss of the right to drive is a deprivation of liberty.

      • Example: Loss of the right to practice one’s profession is a deprivation of liberty.

      • Example: Loss of the right to raise one’s children is a deprivation of liberty.

    2. Of Property: A deprivation of property occurs if there is a reasonable expectation of continued receipt of a benefit (an entitlement) and that entitlement is unfulfilled.

      • Example: A tenured government employee who is fired had an entitlement (continued employment) that was unfulfilled.

  3. Procedures necessary

    The procedures the government must employ if it is depriving a person of life, liberty, or property are determined by balancing the interests (Mathews v. Eldridge).

    1. Balancing test:

      1. Interest that the individual is trying to protect.

      2. Interest that the government is seeking to further.

      3. Administrative and fiscal burdens on the government of alternative procedures.

    2. Specific settled areas:

      1. Terminating welfare benefits requires a hearing (Goldberg v. Kelly).

      2. Terminating government employment requires notice and an opportunity to respond to charges (Cleveland Board of Ed. v. Loudermill).

      3. Revocation of professional license requires a hearing (In re Ruffalo).

      4. Terminating parental custody of a child requires notice and proof of unfitness at a hearing by clear and convincing evidence (Santosky v. Kramer).

 
 

Substantive Due Process

  1. Defined

    Government action requires adequate substantive justifications for taking away a person’s life, liberty, or property. The Fifth Amendment Due Process Clause applies to the federal government and the Fourteenth Amendment Due Process Clause applies to state and local governments.

  2. Fundamental rights

    The government must meet the strict scrutiny test to deprive an indivual of fundamental rights. Usually, fundamental rights fall under the general rubric of the right to privacy.

    1. Examples:

      1. Right to marry (Loving v. Virginia).

      2. Right to purchase and use contraception (Griswold v. Connecticut).

      3. Right to determine how one’s children are educated (Pierce v. Society of Sisters).

    2. Right to an abortion (Roe v. Wade): Although there is a fundamental right to an abortion, there are several special rules regarding this right:

      1. Prior to viability: A woman has a constitutionally protected privacy right to an abortion pre-viability. During this time, a state can place no undue burden on this right.

        1. Waiting period: A 24-hour waiting period is not an undue burden (Planned Parenthood v. Casey).

        2. Parental consent: Requiring a woman under 18 to obtain parental consent is not an undue burden (Id.).

        3. Spousal consent: Requiring a woman to obtain spousal content is an undue burden (Id.).

      2. After viability: There is no fundamental right to an abortion after viability, and thus, states may prohibit abortions unless necessary to protect the woman’s life or health.

  3. Non-fundamental rights

    The rational basis test applies for deprivations of non-fundamental rights. Nearly all economic liberties and social welfare benefits are non-fundamental rights.

    Examples:

    1. Right to practice a trade or profession

    2. Right to engage in physician-assisted suicide

    3. Right to welfare benefits

    4. Right to loiter