Amendment 14 — Property Deprivations And Due Process

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Fourteenth Amendment , Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Like the liberty interest,[1](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn1amd14 " See . ") the concept of property rights has expanded beyond its common law roots, reflecting the Supreme Court’s recognition that certain interests that fall short of traditional property rights are nonetheless important parts of people’s economic well-being. For instance, in a case where household goods were sold under an installment contract and the seller retained title, the Court deemed the possessory interest of the buyer sufficiently important to require procedural due process before repossession could occur.[2](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn2amd14 " Fuentes v. Shevin, 407 U.S. 67 (1972) (invalidating replevin statutes which authorized the authorities to seize goods simply upon the filing of an ex parte application and the posting of bond). ") In another case, the Court held that the loss of the use of garnished wages between the time of garnishment and final resolution of the underlying suit was a sufficient property interest to require some form of determination that the garnisher was likely to prevail.[3](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn3amd14 " Sniadach v. Family Fin. Corp., 395 U.S. 337, 342 (1969) (Harlan, J., concurring). ") The Court has also ruled that the continued possession of a driver’s license, which may be essential to one’s livelihood, is a protected property interest.[4](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn4amd14 " Bell v. Burson, 402 U.S. 535 (1971) (holding that 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). Compare Dixon v. Love, 431 U.S. 105 (1977), with Mackey v. Montrym, 443 U.S. 1 (1979). But see Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (no liberty interest in worker’s compensation claim where reasonableness and necessity of particular treatment had not yet been resolved). ")

A more fundamental shift in the concept of property occurred with recognition of society’s growing economic reliance on government benefits, employment, and contracts.[5](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn5amd14 " See Laurence Tribe, American Constitutional Law 685 (2d. ed) (1988). ") Another relevant factor was the decline of the distinction between rights and privileges. Justice Oliver Wendell Holmes summarized the distinction in dismissing a suit by a policeman who had been fired from his job for political activities: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” [6](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn6amd14 " McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E.2d 517, 522 (1892). ") Under that theory, a finding that a litigant had no “vested property interest” in government employment,[7](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn7amd14 " Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff’d by an equally divided court, 314 U.S. 918 (1951); Adler v. Bd. of Educ., 342 U.S. 485 (1952). ") or that some form of public assistance was “only” a privilege rather than a right,[8](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn8amd14 " Flemming v. Nestor, 363 U.S. 603 (1960). ") meant that no procedural due process was required before depriving a person of that interest.[9](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn9amd14 " Barsky v. Bd. of Regents, 347 U.S. 442 (1954). ") The reasoning was that, if the government was under no obligation to provide some benefit, it could choose to provide that benefit subject to whatever conditions or procedures it deemed appropriate.

There was some tension between the position that the government was free to attach conditions to benefits and another line of cases holding that the government could not require the diminution of constitutional rights as a condition for receiving benefits. That 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](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn10amd14 " Perry v. Sindermann, 408 U.S. 593, 597 (1972). See Speiser v. Randall, 357 U.S. 513 (1958). ") Nonetheless, the two doctrines coexisted in an unstable relationship until the 1960s, when Court largely abandoned the right-privilege distinction.[11](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn11amd14 " See William Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968). A number of early cases involved the imposition of conditions on admitting corporations into a state. Cf. W. & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 656–68 (1981)) (reviewing the cases). Some more recent cases have continued to apply the right-privilege distinction. See Buckley v. Valeo, 424 U.S. 1, 108–09 (1976) (sustaining as qualification for public financing of campaign agreement to abide by expenditure limitations otherwise unconstitutional); Wyman v. James, 400 U.S. 309 (1971). ") By 1972, the Court declared that it had “fully and finally rejected the wooden distinction between ‘rights’ and ‘privileges’ that once seemed to govern the applicability of procedural due process rights.” [12](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn12amd14 " Bd. of Regents v. Roth, 408 U.S. 564, 571 (1972). ")

Concurrently with the decline of the “right-privilege” distinction, the Court embraced a mode of analysis known as the “entitlement” doctrine, under which the Court erected procedural protections against erroneous deprivation of benefits the government had granted on a discretionary basis.[13](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn13amd14 " The limitations were procedural and not substantive, meaning that Congress or a state legislature could still simply take away part or all of the benefit. Richardson v. Belcher, 404 U.S. 78 (1971); U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432–33 (1982). ") Previously, the Court had limited due process protections to constitutional rights, traditional rights, common law rights, and “natural rights.” Under a new “positivist” approach, the Court might find a protected property or liberty interest based on any positive statute or governmental practice that gave rise to a legitimate expectation. This positivist doctrine can be seen in the 1970 case Goldberg v. Kelly, where the Court held that the government must provide an evidentiary hearing before terminating welfare benefits because such termination may deprive an eligible recipient of the means of livelihood.[14](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn14amd14 " 397 U.S. 254 (1970). ") In reaching that conclusion, the Court found that welfare benefits “are a matter of statutory entitlement for persons qualified to receive them.” [15](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn15amd14 " Id. at 261–62. See also Mathews v. Eldridge, 424 U.S. 319 (1976) (Social Security benefits). ") Thus, where the loss or reduction of a benefit or privilege was conditioned upon specified grounds, the Court 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 statutory rights to the claimant led some lower courts to apply the Due Process Clause by weighing the interests involved and the harm done to a person deprived of a benefit. However, the Court held that this approach was inappropriate. It explained, “[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.” [16](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn16amd14 " Bd. of Regents v. Roth, 408 U.S. 564, 569–71 (1972). ") To have a property interest in the constitutional sense, the Court held, it was not enough for a person to have an abstract need or desire for a benefit or a unilateral expectation. He must rather “have a legitimate claim of entitlement” to the benefit.[17](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn17amd14 " Id. at 577. ") The Court further explained that property interests “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.” [18](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn18amd14 " Id. ")

Consequently, in Board of Regents v. Roth, the Court held that a public university’s 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 university’s contract, regulations, or policies that “created any legitimate claim” to reemployment.[19](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn19amd14 " Id. at 576–78. ") By contrast, in Perry v. Sindermann, 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.[20](https://www.law.cornell.edu/constitution-conan/amendment-14/property-deprivations-and-due-process#fn20amd14 " 408 U.S. 593 (1972). See Leis v. Flynt, 439 U.S.