Procedural due process asks what the government owes a person before it takes away life, liberty or property. It does not question whether the government may act. It governs how. The analysis has two parts that must stay separate: first, is there a protected interest at stake at all, and second, if there is, what procedures are constitutionally required before the deprivation.
Rule
- A protected interest. Property interests come from an independent source such as a statute or contract that creates a legitimate claim of entitlement, not a mere hope. Liberty covers physical freedom and other interests recognized by the Constitution or created by state law.
- A deprivation. Intentional or reckless government action, not mere negligence.
- What process is due. Weigh the private interest affected, the risk of an erroneous deprivation under the existing procedures and the value of additional safeguards, and the government's interest including the burden of more process.
- Usual minimum. Notice and a meaningful opportunity to be heard before a neutral decision maker.
- Timing. A hearing is normally required before the deprivation, though a post-deprivation hearing can suffice where the government interest in acting quickly is strong.
Leading cases
- Goldberg v. Kelly: welfare benefits could not be terminated without an evidentiary hearing beforehand, because the recipient's need was immediate and severe.
- Board of Regents of State Colleges v. Roth: a untenured professor had no property interest in renewal, because a protected interest requires a legitimate claim of entitlement rather than a unilateral expectation.
- Mathews v. Eldridge: the three factor balancing test, applied to hold that disability benefits could be terminated with a post-termination hearing.
Where students go wrong
The first mistake is jumping to the balancing test. If there is no protected liberty or property interest, no process is due at all, and the question ends there.
The second is treating every expectation as property. The interest must come from an outside source that creates an entitlement, which is why an at will employee usually has no claim and a tenured one does.
The third is assuming a full trial is required. The balancing test often produces something much lighter, such as notice, an explanation and an informal chance to respond, with a fuller hearing later.
FAQ
What counts as a property interest?
A legitimate claim of entitlement created by statute, regulation, contract or a mutually explicit understanding. A unilateral expectation or an abstract need is not enough.
Is a hearing always required before the government acts?
No. Where the government has a strong interest in acting quickly, such as public safety or fiscal administration, a prompt hearing afterwards can satisfy the clause.
Does negligence by an official violate due process?
No. A merely negligent act causing loss is not a deprivation for these purposes, and the remedy lies in ordinary tort law.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.