DUE PROCESS OF LAW

Procedural due process: The Due Process Clause protects not only “substantive” rights as discussed above, it also requires that the state act with adequate or fair procedures when it deprives a person of life, liberty or property.
- Life, liberty or property: There cannot be a procedural due process problem unless the government is taking a person’s life, liberty or property. There is no general interest in having the government behave with fair procedures.
- Property: Most procedural due process problems involve the issue of whether the thing being taken constitutes “property.”
  - Government benefits: Government benefits may or may not constitute “property” rights. Generally, if one is just applying for benefits, one does not have a property interest in those benefits. But if a person has already been getting the benefits, usually he’s got a property interest in continuing to get them, so the government cannot terminate those benefits without giving him procedural due process. The same analysis generally applies to government jobs: if you’re just applying for the job, you don’t have a property interest in it, but if you already have the job, then you may have a property interest, which entitles you to fair procedures before the job can be taken away.
- Process required: Once you determine that a person’s interest in property or liberty is being impaired, you have to determine exactly what procedures the person is entitled to get.
  - Non-judicial proceedings: Usually, the issue arises in a non-judicial proceeding (e.g., taking away someone’s government job or government benefits). In general, in a non-judicial proceeding, the state does not have to give the individual the full range of procedural safeguards needed for a court proceeding. Instead, the court conducts a balancing test to determine the required procedures — the strength of the plaintiff’s interest in receiving a particular procedural safeguard is weighed against the government’s interest in avoiding extra burdens from having to give that safeguard. Thus in a particular situation the government may or may not have to give, say, a hearing, depending on the strength of the plaintiff’s interests and the burden to the state in giving the hearing.

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