Boston University School of Law
The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.
It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty or property interest which has been interfered with by the state,1 and second, whether the procedures attendant upon any deprivation were constitutionally sufficient.2 Although the Supreme Court has not explicitly stated that liberty and property interests should be treated differently, recent developments in constitutional law have exhibited a decline in the protection accorded to liberty interests (and non-traditional forms of property) and an increase in the protection accorded to traditional property interests.3 This essay addresses this recent phenomenon.
Jack M. Beermann, Barbara A. Melamed & Hugh F. Hall,
Supreme Court's Tilt to the Property Right: Procedural Due Process Protections of Liberty and Property Interests
Boston University Public Interest Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2275