No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The expansion of the concept of
property rights beyond its common law roots reflected a recognition by the Court that certain interests that fall short of traditional property rights are nonetheless important parts of people’s economic well-being. For instance, where household goods were sold under an installment contract and title was retained by the seller, the possessory interest of the buyer was deemed sufficiently important to require procedural due process before repossession could occur. 1 In addition, the loss of the use of garnished wages between the time of garnishment and final resolution of the underlying suit was deemed a sufficient property interest to require some form of determination that the garnisher was likely to prevail. 2 Furthermore, the continued possession of a driver's license, which may be essential to one’s livelihood, is protected; thus, a license should not be suspended after an accident for failure to post a security for the amount of damages claimed by an injured party without affording the driver an opportunity to raise the issue of liability. 3
A more fundamental shift in the concept of property occurred with recognition of society’s growing economic reliance on government benefits, employment, and contracts, 4 and with the decline of the
right-privilege principle. This principle, discussed previously in the First Amendment context, 5 was pithily summarized by Justice Holmes in dismissing a suit by a policeman protesting being fired from his job:
The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. 6 Under this theory, a finding that a litigant had no
vested property interest in government employment, 7 or that some form of public assistance was
only a privilege, 8 meant that no procedural due process was required before depriving a person of that interest. 9 The reasoning was that, if a government was under no obligation to provide something, it could choose to provide it subject to whatever conditions or procedures it found appropriate.
The conceptual underpinnings of this position, however, were always in conflict with a line of cases holding that the government could not require the diminution of constitutional rights as a condition for receiving benefits. This line of thought, referred to as the
unconstitutional conditions doctrine, held that,
even though a person has no ‘right’ to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, it may not do so on a basis that infringes his constitutionally protected interests – especially, his interest in freedom of speech. 10 Nonetheless, the two doctrines coexisted in an unstable relationship until the 1960s, when the right-privilege distinction started to be largely disregarded. 11
Concurrently with the virtual demise of the
right-privilege distinction, there arose the
entitlement doctrine, under which the Court erected a barrier of procedural – but not substantive – protections 12 against erroneous governmental deprivation of something it had within its discretion bestowed. Previously, the Court had limited due process protections to constitutional rights, traditional rights, common law rights and
natural rights. Now, under a new
positivist approach, a protected property or liberty interest might be found based on any positive governmental statute or governmental practice that gave rise to a legitimate expectation. Indeed, for a time it appeared that this positivist conception of protected rights was going to displace the traditional sources.
As noted previously, the advent of this new doctrine can be seen in Goldberg v. Kelly, 13 in which the Court held that, because termination of welfare assistance may deprive an eligible recipient of the means of livelihood, the government must provide a pre-termination evidentiary hearing at which an initial determination of the validity of the dispensing agency’s grounds for termination may be made. In order to reach this conclusion, the Court found that such benefits
are a matter of statutory entitlement for persons qualified to receive them. 14 Thus, where the loss or reduction of a benefit or privilege was conditioned upon specified grounds, it was found that the recipient had a property interest entitling him to proper procedure before termination or revocation.
At first, the Court’s emphasis on the importance of the statutory rights to the claimant led some lower courts to apply the Due Process Clause by assessing the weights of the interests involved and the harm done to one who lost what he was claiming. This approach, the Court held, was inappropriate.
[W]e must look not to the ‘weight’ but to the nature of the interest at stake. . . . We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property. 15 To have a property interest in the constitutional sense, the Court held, it was not enough that one has an abstract need or desire for a benefit or a unilateral expectation. He must rather
have a legitimate claim of entitlement to the benefit.
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law – rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. 16
Consequently, in Board of Regents v. Roth, the Court held that the refusal to renew a teacher’s contract upon expiration of his one-year term implicated no due process values because there was nothing in the public university’s contract, regulations, or policies that
created any legitimate claim to reemployment. 17 By contrast, in Perry v. Sindermann, 18 a professor employed for several years at a public college was found to have a protected interest, even though his employment contract had no tenure provision and there was no statutory assurance of it. 19 The
existing rules or understandings were deemed to have the characteristics of tenure, and thus provided a legitimate expectation independent of any contract provision. 20
The Court has also found
legitimate entitlements in a variety of other situations besides employment. In Goss v. Lopez, 21 an Ohio statute provided for both free education to all residents between five and 21 years of age and compulsory school attendance; thus, the state was deemed to have obligated itself to accord students some due process hearing rights prior to suspending them, even for such a short period as ten days.
Having chosen to extend the right to an education to people of appellees’ class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred. 22 The Court is highly deferential, however, to school dismissal decisions based on academic grounds. 23
The further one gets from traditional precepts of property, the more difficult it is to establish a due process claim based on entitlements. In Town of Castle Rock v. Gonzales, 24 the Court considered whether police officers violated a constitutionally protected property interest by failing to enforce a restraining order obtained by an estranged wife against her husband, despite having probable cause to believe the order had been violated. While noting statutory language that required that officers either use
every reasonable means to enforce [the] restraining order or
seek a warrant for the arrest of the restrained person, the Court resisted equating this language with the creation of an enforceable right, noting a long-standing tradition of police discretion coexisting with apparently mandatory arrest statutes. 25 Finally, the Court even questioned whether finding that the statute contained mandatory language would have created a property right, as the wife, with no criminal enforcement authority herself, was merely an indirect recipient of the benefits of the governmental enforcement scheme. 26
In Arnett v. Kennedy, 27 an incipient counter-revolution to the expansion of due process was rebuffed, at least with respect to entitlements. Three Justices sought to qualify the principle laid down in the entitlement cases and to restore in effect much of the right-privilege distinction, albeit in a new formulation. The case involved a federal law that provided that employees could not be discharged except for cause, and the Justices acknowledged that due process rights could be created through statutory grants of entitlements. The Justices, however, observed that the same law specifically withheld the procedural protections now being sought by the employees. Because
the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest, 28 the employee would have to
take the bitter with the sweet. 29 Thus, Congress (and by analogy state legislatures) could qualify the conferral of an interest by limiting the process that might otherwise be required.
But the other six Justices, although disagreeing among themselves in other respects, rejected this attempt to formulate the issue.
This view misconceives the origin of the right to procedural due process, Justice Powell wrote.
That right is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. 30 Yet, in Bishop v. Wood, 31 the Court accepted a district court’s finding that a policeman held his position
at will despite language setting forth conditions for discharge. Although the majority opinion was couched in terms of statutory construction, the majority appeared to come close to adopting the three-Justice Arnett position, so much so that the dissenters accused the majority of having repudiated the majority position of the six Justices in Arnett. And, in Goss v. Lopez, 32 Justice Powell, writing in dissent but using language quite similar to that of Justice Rehnquist in Arnett, seemed to indicate that the right to public education could be qualified by a statute authorizing a school principal to impose a ten-day suspension. 33
Subsequently, however, the Court held squarely that, because
minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse action. Indeed, any other conclusion would allow the state to destroy virtually any state-created property interest at will. 34 A striking application of this analysis is found in Logan v. Zimmerman Brush Co., 35 in which a state anti-discrimination law required the enforcing agency to convene a fact-finding conference within 120 days of the filing of the complaint. Inadvertently, the Commission scheduled the hearing after the expiration of the 120 days and the state courts held the requirement to be jurisdictional, necessitating dismissal of the complaint. The Court noted that various older cases had clearly established that causes of action were property, and, in any event, Logan’s claim was an entitlement grounded in state law and thus could only be removed
for cause. This property interest existed independently of the 120-day time period and could not simply be taken away by agency action or inaction. 36