[SOUND] I've now reviewed the major rights to protection of the Constitution, a part of the First Amendment that I will get to. In all of these instances what I've been talking about is what does the government have to show in order to justify interfering with the right. What rights are protected by the constitution, and what's the government's burden to justifying an infringement. This is often referred to with the label substantive due process. What does that mean? Well, it means that the court is interpreting the word liberty and the due process clause of the 14th amendment, which applies to state and local governments. With the due process clause, the 5th amendment applies to the Federal Government. As protecting rights, and the government can interfere with those rights only if it has a sufficient substantive justification. Now what's sufficient depends on the level of scrutiny used. If, for instance, it's an economic liberty and it's a rational basis review, then the government can interfere with it, such as the freedom of contract. So why a legitimate interest reasonable? On the other hand, if it's a fundamental right then the government is going to have whatever sufficient justification, need to meet strict scrutiny, show that it's action is necessary to achieve a compelling purpose. But there is another, very different meaning of due process, and that's what I want to talk about here in concluding my discussion of individual rights. This concept of due process is often referred to as procedural due process. As the label implies, and as I said earlier, procedural due process refers to the procedures that government must follow when it takes away a persons lifelLiberty or property. Whenever it comes to procedural due process, the Supreme Court says there are two questions. 1st, has there been a deprivation of life liberty or property. Only if there has been a deprivation of life, liberty or property, is the government required to provide due process. Now it's interesting to think about how to determine is there are property interest? Is there a liberty interest? Usually of course it's possible to spot a deprivation of life but what does property mean? What does liberty mean? The court has shifted in its view of this over time with regard to property, for much of American history the supreme court said a person has a property interest if there's a right. A person has no property interest if it's just a privilege. And the government has to provide due process if it takes away a right, but the government doesn't have to provide due process if it just takes away a privilege. An example, in an earlier case, the government went to fire a government employee. And the question was did the government have the right of due process? And the supreme court said no, working for the government is a privilege. Working for the government isn't a right. So the government doesn't have to provide any due process when it fires somebody. And so it used to be if the government wanted to take aways somebody's drivers license or somebody's welfare benefits, the courts would say, those are privileges. Those aren't rights the government doesn't have to provide due process. The law here changed dramatically in 1970, in Goldberg versus Kelly. Goldberg versus Kelly involved where the Government had right due process. A Notice and a hearing before someone's welfare benefits could be terminated. Under the old rights privileges distinction the Supreme Court would have said, well if there is a privilege, it's not a right, no due process. But Goldberg versus Kelly changed a lot in that regard. Goldberg versus Kelly said, welfare is enormously important in a person life. In fact the court said the welfare and other government benefits like it play the same role in a person's life that traditional real property would perform. You hear a lot of a very famous article by Yale law professor Charles Reich titled the new property when he said just that. So there's a whole host of benefits in the government that are so important for a person's life. They should be analogized to real property and the government should be able to take them away only by its due process. The Supreme Court in Goldberg versus Kelly said welfare is that type of benefit. And the law ever since has been that the government can terminate a person's welfare benefits only if first provides notice and a hearing. The Supreme Court, in the now 45 years since Goldberg versus Kelly, has clarified and said that a person has a property interest. It must be provided due process, so long as the government creates a reasonable expectation to continue receive the benefit. So long as the government gives a person a reasonable expectation that the benefit will continue. There is a property interest, and due process has to be provided. So, imagine that the government says to a government employee, the job is yours for the next year and the government fires the person in the middle of the year. Does the government have to provide due process? Yes, the person has a reasonable expectation that the job would be there for a year. When it was taken away in the middle of the year, property was deprived. Due process was required but compare that with another example. It comes from a 1973 Supreme Court case, Roth v. Board of Regents. Roth worked for the University of Wisconsin on a year to year contract. Each contract made it clear that he should have no expectation that the contract would be renewed. The contract expired, it was not renewed. Roth sued and said that he should be given due process with regard to the non-renewal. Was the government required to provide Roth due process? Notice in the hearing the supreme court said no. The supreme court said he had no reasonable expectation the contract would be renewed. He had no property interest, thus no due process was required. The Supreme Court has taken a similar approach with regard to liberty. The Court has said the people have a liberty interest if the Constitution or statutes give a reasonable expectation to the freedom. So, the rights we possess under the Constitution are our liberty. The government has to provide us due process before it takes them away. But, if there's nothing in the constitution and there's nothing in state law that gives an expectation of a freedom, there's no liberty. Let me give you an example, Supreme Court case from 1976, a case called Paul v. Davis. Louisville, Kentucky had the practice of posting shoplifter's pictures in department stores. An individual's picture was wrongly posted, the individual sued the government, saying that it had taken away his reputation. His liberty without due process. But the Supreme Court ruled in favor of the city of Louisville, and against the individual. The court said nothing in the constitution or Kentucky law is given a reasonable expectation to protection of reputation. Thus no liberty interests, no due process is required, so if the government deprives a person of life, of liberty, of property, it's got to provide due process of law. If there's no liberty or property interests, than no due process is going to be required. Well, this leads to the second question with regard to procedural due process. What procedures are required? Assuming that there has been a deprivation of life, liberty, or property, what does the government have to provide with regard to process? In Mathews versus Eldridge in 1976, the Supreme Court articulated a three part test for determining what procedures are required when a person deprived of life, liberty of property. The court says it will balance little one, the importance of the interest to the individual. Obviously, the more important the interest to the individual, the more in the way of procedural protections the court will require. The court says it will balance second the ability of additional procedures to reduce the risk of an erroneous deprivation. The more additional procedures will lead to better, more accurate decisions. The more additional procedures reduce the risk of a mistake, the more likely it is a court will require them and third, the court looks to the government's interest. The government's interest is usually in efficiency and saving money. Now, as you'd guess, when there's a three-part balancing test like this, courts have a good deal of discretion and I'll give you some examples of how it was used. In Goldberg versus Kelly, the Supreme Court said that before welfare benefits can be terminated, there must be notice in a year. The court stressed the importance of welfare benefits in a person's life often there's subsistence necessary for life. The courts said government administrators can make a lot of mistakes In cutting people off the roles. And the court said providing procedural protection's more important than having a more efficient procedure for the government. But compare this to another case, Matthews versus Aldridge, itself. The question was when the government is terminating Social Security disability benefits, what does it have to provide by way of procedures? And the Supreme Court said, whereas for welfare, notice and hearing has to come before the cutoff of benefits. For Social Security Disability, they can come after the cutoff of benefits. The court felt that the balance between Welfare and Social Security Disability was sufficiently different to warrant varying rules. Are you persuaded by that? Is it desirable? Well, I'll give you another example. The Supreme Court has said that before a student is disciplined by a public school like being suspended or expelled. The student must be given notice of the charges and an opportunity to respond, the student doesn't have to be given a trial type hearing. Goss versus Lopez says there's got to be notice of the charges and an opportunity to respond. Or another more recent example, the Supreme Court has said that an American citizen held as an enemy combatant must be given due process. This was the holding of Hamdi v. Rumsfeld. in 2004, Yaser Hamdi is an American citizen, who was apprehended on the battlefield in Afghanistan. He was taken first to a military prison in Afghanistan, and then to Guantanamo Bay, Cuba. In Guantanamo it was learned that he was a United States citizen He was then brought to a military prison in South Carolina. He sued and said he could be given due process with regard to his detention. The Supreme Court, the United States government disagreed. The United States government said he should be only held as an enemy combatant without any need for due process. The Supreme Court ruled that the government could hold Hamdi as an energy combatant, but it had to provide him due process. The court expressly used the three part balancing test that I measured. The court said that deprivation of liberty is great. The importance to the individual is great. This is about whether somebody would be incarcerated or free. The court said, additional procedures can really make a difference here. Sometimes, people are held unjustly, by mistake. Notice a hearing might expose that and the government interest is obviously in security. But the court felt that the government's interest could be achieved by providing due process. Now what's interesting is, the court suggested that due process would have to include notice of the charges, a meaningful, factual hearing, representation by a lawyer. But the court said, perhaps the government should be able to put the burden of proof. And the enemy condemned or the alleged enemy condemned to show that she is not one rather than the burden on government to prove that the person is an enemy combatant. So, the court was dealing what procedures and on the one hand said we've got have notice and hearing and even representation by a lawyer. But the court then suggested that it would permissible, or at least might be permissible, for the government to put the burden on the person to show that he or she is not an enemy condemned. The key to note here is that the courts using a two step approach with regard to procedure of the process. First, does the person have, is the person deprived of life, liberty or property? And if so, then second, what procedures are required? What kind of notice? What kind of hearing? What kind of representation? And that's the framework used throughout Constitutional law when it's a question of procedural due process.
