2

Preliminaries

ʻAppearances in the dark are apt to look different in the light of day.ʻ' 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 ʻpersonʻ 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 ʻpersonsʻ 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 gov-
ernmental, not private, action, we must next consider who qualifies as a ʻstateʻ or
ʻgovernmentʻ 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 ʻpropertyʻ entail anything more than real estate? Is tangible personal
property protected? What about non-tangible interests, like employment and rep-
utation ? And how broadly are the words ʻlifeʻ and ʻlibertyʻ 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 protec-
tion. If a state actor's mere negligence causes a person to lose a protected interest,
has there been a ʻdeprivationʻ for due process purposes, or must the state actor
actually intend to deprive her of a protected interest to trigger due process protec-
tion ? 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.
ʻPERSONSʻ PROTECTED BY DUE PROCESS
Webster's Dictionary defines a ʻpersonʻ as ʻa human being, whether man, woman
or child.ʻ' Taken at face value, this definition suggests that aliens clandestinely

-21-