DUE PROCESS

  1. INTRODUCTION
    1. Two major principles: There are two general principles that are crucial to remember:
      1. Protected against the government: Almost all individual rights conferred by the Constitution protect only against government action.
        1. They do not protect a person against acts by other private individuals.
        2. The only exception to the "government action only" rule is the Thirteenth Amendment’s ban on slavery, which does apply to private conduct.
      2. Not directly applicable to states:
        1. The Bill of Rights does not directly apply to the states.
        2. The Fourteenth Amendment’s Due Process Clause (which does apply to the states) has been interpreted to make nearly all of the Bill of Rights guarantees applicable to the states — these individual guarantees are "incorporated" into the Bill of Rights.
          1. The Supreme Court has never said that due process requires the states to honor the Bill of Rights as a whole.
          2. Under this approach, "fundamental" rights are "selectively incorporated" into the meaning of "due process" and made binding on the states.
        3. The only major Bill of Rights guarantees not incorporated are:
          1. Grand jury: The 5th Amendment’s right not to be subject to a criminal trial without a grand jury indictment (so that a state may begin proceedings by an "information," as some states do);
          2. Right to jury in civil cases: The 7th Amendment’s right to a jury trial in civil cases.
        4. Once a given Bill of Rights guarantee is made applicable to the states, the scope of that guarantee is interpreted the same way for the states as for the federal government.
  2. THE 14TH AMENDMENT
    1. Three rights:
      1. The right to due process
      2. The right to equal protection
      3. The right to the privileges and immunities of national citizenship.
  3. The federal Due Process Clause:
    1. There is a due process clause in the 5th Amendment, binding on the federal government.
    2. Both then5th and 14th are interpreted the same way, so that any state action that would be forbidden by the 14th Amendment Due Process Clause is also forbidden to the federal government via the 5th Amendment Due Process Clause.
  4. SUBSTANTIVE DUE PROCESS
    1. Generally:
      1. The Due Process Clause imposes certain procedural requirements on governments when they impair life, liberty, or property.
      2. The Due Process Clause also limits the substantive power of the states to regulate certain areas of human life.
      3. This "substantive" component derives mainly from the interpretation of "liberty:" certain types of state limits on human conduct so unreasonably interfere with "fundamental" or important human rights that they amount to an unconstitutional denial of "liberty".
      4. If a state or the federal government is impairing a "fundamental" right, the court uses strict scrutiny.
        1. The government must be pursuing a "compelling" governmental objective, and
        2. The governmental action must be "necessary" to achieve it
      5. If a right or value is found to be "non-fundamental," then the state action that impairs that right only has to meet the easy "mere rationality" test.
        1. The state must be pursuing a legitimate governmental objective
          1. Virtually any health, safety or "general welfare" goal comes within the state’s "police power" and is thus "legitimate."
          2. Taxing is a legitimate function as well
        2. It must be doing so with a means that is rationally related to that objective.
          1. The standard is a "minimally rational relation" between the means chosen and the state objective.
          2. The Court presumes that the statute is constitutional it is completely "arbitrary and irrational."
      6. Since 1937, the Court has not struck down an economic regulation for violating substantive due process.
      7. Most "social welfare" legislation merely has to meet this standard as well.
    2. Quasi-fundamental rights:
      1. The right to abortion used to be "fundamental," but now seems to be only "quasi-fundamental" after Planned Parenthood of Southeastern Pennsylvania v. Casey.
        1. A woman has a constitutionally-protected privacy interest in choosing to have an abortion before viability.
        2. The state has a somewhat countervailing interest in protecting "potential life," even before viability. This conflict seems to yield the following results:
          1. The state does not have the right to ban all pre-viability abortions or even those pre-viability abortions not necessary to save the life or health of the mother.
          2. However, the state may regulate the abortion process provided it does not place an "undue burden" on the woman’s right to choose a pre-viability abortion.
          3. A regulation will constitute an "undue burden" if the regulation "has the purpose or effect of placing a substantial obstacle in the path of a woman" seeking a pre-viability abortion.
          4. What constitutes "undue burden": Most state regulation will apparently not constitute an "undue burden," and will thus be sustained.
          5. Informed consent
            1. The state may impose an elaborate "informed consent" provisions
            2. These may include provisions that at least 24 hours before performing an abortion, the physician must inform the woman of the nature of the procedure, the health risks of both abortion and childbirth, the probable gestational age of the fetus, the availability of state-printed materials, etc.
          6. Parental consent
            1. The state may require that an unemancipated woman under 18 not obtain an abortion unless she and one of her parents both provide consent
            2. The state may also require that this parental consent be "informed," even if this requires an in-person visit by the parent to the facility, and even if it involves a 24-hour waiting period.
            3. The state must allow for a "judicial bypass;" it must give the girl an opportunity to persuade a judge that an abortion is in her best interests.
            4. The state must also allow an individualized judicial hearing at which the girl may persuade the court that she is in fact sufficiently mature or emancipated that she is able to make this decision for herself.
          7. The state may not give a pregnant woman’s spouse a veto right over the woman’s abortion decision. [Planned Parenthood v. Danforth]
          8. The state may not even require that the woman notify her spouse of her intent to get an abortion, even if the state exempts cases of spousal sexual assault or threatened bodily injury.
          9. States may refuse to give public funding (e.g., Medicaid) for abortions even though they give such funding for other types of operations. Also, states may prohibit public hospitals from performing abortions.
          10. The government may, as a condition of funding family-planning clinics, insist that the doctor or other professional not recommend abortion, and not refer clinic patients to an abortion provider. [Rust v. Sullivan]
        3. Types of abortion:
          1. The state probably has substantial freedom to place regulations on the types of abortions that may be performed.
          2. For example, the state may probably now require that all second trimester abortions be performed in a hospital.
      2. The law of "right to die" and "right to pull the plug" is developing and so might be considered quasi-fundamental.
        1. A competent adult has a liberty interest in not being forced to undergo unwanted medical procedures, including artificial life-sustaining measures.
        2. It’s not clear whether this is a "fundamental" interest.
        3. The state has an important countervailing interest in preserving life.
        4. In the case of a now-incompetent patient, the state’s interest in preserving life entitles it to say that it won’t allow the "plug" to be "pulled" unless there is "clear and convincing evidence" that the patient would have voluntarily declined the life-sustaining measures. [Cruzan v. Director, Mo. Dept. of Health]
        5. The states must probably honor a "living will" and a "health-care proxy."
        6. Terminally-ill patients do not have a general liberty interest in "committing suicide." Nor do they have the constitutional right to recruit a third person to help them commit suicide. [Washington v. Glucksberg]
    3. Fundamental rights:
      1. Strict scrutiny:
        1. If a state or federal regulation is impairing a fundamental right, the court strictly scrutinizes the regulation.
          1. The state or federal regulation must not impair a fundamental right
          2. The objective being pursued by the state must be "compelling"
          3. The means chosen by the state must be "necessary" to achieve that end; there must not be any less restrictive means that would do the job just as well.
      2. Burden of proof:
        1. When strict scrutiny is not being used, the person attacking the statute has the burden of showing that the state is pursuing an illegitimate objective, or that the state has chosen a means that is not rationally related to its objective.
        2. If strict scrutiny is used, the burden of proof shifts to the state to show that it’s pursuing a compelling objective, and that the means it chose are "necessary" to achieve that objective.
      3. Rights governed:
        1. The "right to privacy" and autonomy;" a person’s right to make his own decisions about highly personal matters.
          1. This right of privacy or autonomy derives indirectly from several Bill of Rights guarantees, which collectively create a "penumbra" or "zone" of privacy.
          2. The rights or interests falling within this "right to privacy" or "right to autonomy" include
            1. Marriage
            2. Child-bearing
            3. Child-rearing.
          3. Illustrations:
            1. The right to use birth control
              1. Whether a person is married or single, he or she has a fundamental interest in contraception, and the state cannot impair that interest without satisfying strict scrutiny.
              2. We still don’t know whether minors have a fundamental right to contraception.
            2. The right to live together with your family
            3. The right to direct the upbringing and education of your children
            4. The right to marry
          4. Contrast: an adult’s interest in having consensual sex outside of marriage seems not to be "fundamental."
        2. Family relations:
          1. States may not interfere with a person’s decision about how to live his family life and raise his children.
            1. Relatives have a fundamental right to live together.
            2. Parental rights to direct the upbringing and education of their children is "fundamental."
            3. There’s probably a fundamental right to continue parenting
              1. The state can’t take away your child just because it thinks a foster home would be "better" for the child.
              2. Even if there’s child abuse, the parent still has a fundamental right to parent, but here the state’s interest in protecting the child would be "compelling," so putting the child in foster care would probably satisfy strict scrutiny.)
            4. If a parent has never married the other parent, and has never developed a relationship with the child, there is probably not a fundamental right to continue to be a parent.
        3. The right to marry is fundamental
        4. There seems to be no general fundamental right to engage in adult consensual sexual activity.
          1. Adults have no fundamental right to engage in homosexual sodomy, and the state may therefore not only ban but criminally punish such activity. [Bowers v. Hardwick]
          2. this may be about to change; see Romer v. Evans, an Equal Protection case in which the Court struck down an enactment that said homosexuals could not be protected from anti-gay discrimination.
          3. Other sexual conduct: In fact, outside of the marriage relationship, there is probably no kind of sexual activity the practice of which is a "fundamental right". Thus the state can almost certainly prohibit, and punish, adultery and fornication.
        5. Where the parties are married, there probably is a fundamental right to have even "deviant" sex, as long as it’s not physically dangerous and is consensual.
        6. Other possible places: Here are a couple of other areas where there might be a fundamental right.
          1. You probably have a fundamental right to read what you want.
          2. You may have a fundamental right to control your personal appearance.

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  5. Procedural due process
    1. There cannot be a procedural due process problem unless government is taking a person’s life, liberty or property.
    2. There is no general interest in having the government behave according to fair procedures.
      1. Always distinguish between "substantive" due process and "procedural" due process.
      2. Procedural due process applies only where individual determinations are being made.
      3. Example:
        1. Suppose a state passes a law that says that no person with child support may marry.
        2. This statute raises an issue of substantive due process
        3. Separately, even if this "ban on marriage" could pass this substantive due process hurdle the state still must use adequate procedures before enforcing the ban against a particular person.
        4. For instance, the state must probably provide a person with notice that the ban will be applied, and a hearing at which he can show that the ban shouldn’t apply to him because (for instance) he’s fully paid up.
        5. The obligation to use fair procedures always applies "one case at a time," and governs the application of government action to a particular person in a particular situation.
    3. Liberty cannot be taken without procedural due process
      1. There is an interest in "physical" liberty.
        1. This liberty interest is violated if you are imprisoned
        2. This liberty is violated if you are placed in some other situation where you do not have physical freedom of movement (e.g., juvenile and/or civil commitment).
      2. Intangible rights: Also, a person has a liberty interest in being able to do certain intangible things not related to physical freedom of movement.
      3. Examples, include (1) the right to drive; (2) the right to practice one’s profession; (3) the right to raise one’s family. But one’s interest in having a good reputation is not "liberty" (so the state can call you a crook without giving you due process — see Paul v. Davis.)
    4. Property cannot be taken without procedural due process.
      1. Conventional property, i.e., personal and real property
      2. Certain kinds of debt collection devices involve "property."
        1. If the state lets private creditors attach a person’s bank account prior to trial (which means that the owner can’t get at the funds), even that temporary blockage is a "taking" of property.
        2. If the state lets a private creditor garnish a person’s wages, that’s a taking of property.
        3. If the state simply passes a law that lets creditors use self-help to repossess goods, there’s no governmental taking of property when the creditor repossesses.
        4. The due process requirement applies only where it is government that does, or at least is involved in, the taking of liberty or property.
      3. Government benefits may or may not constitute "property" rights.
        1. Generally, if one is just applying for benefits and hasn’t yet been receiving them, one does not have a property interest in those benefits.
        2. But if a person has already been getting the benefits, it’s probably the case that he’s got a property interest in continuing to get them, so that the government cannot terminate those benefits without giving him procedural due process. [Goldberg v. Kelly]
        3. State law can change this — for instance, if the state statute governing welfare benefits says that "benefits may be cut off at any time," you probably don’t have a property interest in continuing to get those benefits, so you have no claim to due process.
      4. A government job is similar to government benefits.
        1. If you’re just applying , no property right
        2. If you already have job, the court looks to state law to determine whether you had a property interest in the job.
        3. Ordinarily, under state law a job is terminable at will; if so, the jobholder has no property right to it, so he may be fired without due process.
        4. If either a statute or the public employer’s practices give a person a "legitimate claim of entitlement" to keep the job, then she’s got a property interest.
    5. What procedures does the person get? There is no simple answer.
      1. Court proceedings:
        1. Where a person is a litigant in a formal judicial proceeding, a quite full panoply of procedural safeguards is constitutionally required for "due process."
        2. The state is required to give the litigant the right to a hearing, the right to call witnesses, the right to counsel, the right to a fair and objective trial, and the right to an appeal.
        3. Other constitutional provisions aside from the Due Process Clause give additional procedural safeguards; for example, the Sixth Amendment confers a right to jury trial in criminal cases, the right to appointed counsel if one is indigent, and a right to confront witnesses against oneself.
      2. Non-judicial proceeding:
        1. Where the property or liberty interest is being impaired in something other than a judicial proceeding, the state does not have to give the individual the full range of procedural safeguards that would be needed for a court proceeding.
        2. Any particular procedural safeguard that the plaintiff says he or she should get (e.g., the right to a hearing), the court conducts a balancing test, weighing the strength of the plaintiff’s interest in receiving the procedural safeguard against the government’s interest in avoiding extra burdens.