Procedural Due Process: A Reference Guide to the United States Constitution

By Rhonda Wasserman | Go to book overview

2
Preliminaries

"Appearances in the dark are apt to look different in the light of day."1

Before we begin our analysis of the procedural protections afforded by the Due Process Clauses, we must examine four critical preliminary issues. First, we must consider who qualifies as a "person" protected by due process. Do the Fifth and Fourteenth Amendments protect only individuals or are noncorporeal entities— like corporations, unions, and even governments themselves—also protected? Are all individuals considered "persons" within the meaning of the Due Process Clauses or are only American citizens or those admitted for permanent residence protected? Second, since the Due Process Clauses protect persons from only governmental, not private, action, we must next consider who qualifies as a "state" or "government" actor. Put differently, when are private parties sufficiently involved in governmental action to qualify as state actors for constitutional purposes? Third, we must define the interests protected by the Due Process Clauses. Does the word "property" entail anything more than real estate? Is tangible personal property protected? What about non-tangible interests, like employment and reputation? And how broadly are the words "life" and "liberty" read? Finally, we must consider the state of mind that the governmental actor must possess at the time she deprives a person of a protected interest to trigger due process protection. If a state actor's mere negligence causes a person to lose a protected interest, has there been a "deprivation" for due process purposes, or must the state actor actually intend to deprive her of a protected interest to trigger due process protection? If negligent acts do not satisfy the state-of-mind requirement, how about grossly negligent or reckless acts? It is to these critically important preliminary issues that we now turn.


"PERSONS" PROTECTED BY DUE PROCESS

Webster's Dictionary defines a "person" as "a human being, whether man, woman or child."2 Taken at face value, this definition suggests that aliens clandestinely

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Procedural Due Process: A Reference Guide to the United States Constitution
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Series Foreword ix
  • Foreword xiii
  • Acknowledgments xv
  • 1: The History of Due Process 1
  • 2: Preliminaries 21
  • 3: Notice and the Opportunity to Be Heard 63
  • 4: The Form and Extent of Notice 129
  • 5: Due Process Limitations on the Binding Effect of Judgments 163
  • 6: Due Process Limitations on Personal Jurisdiction 207
  • 7: Due Process Limitations on Choice of Law 263
  • Bibliographical Essay 289
  • Table of Cases 325
  • Index 351
  • About the Author 379
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