Entitlement

• Author: Seth F. Kreimer
• Pages: 897-898

Page 897

Both the Fifth Amendment and the FOURTEENTH AMENDMENT protect "life, liberty or property" against deprivation "without due process of law." At least according to the constitutional text, when citizens seek to challenge a government's action as a violation of the due process clause, they must adduce some interest in "life, liberty or property" of which they have been deprived.

In the field of PROCEDURAL DUE PROCESS OF LAW, the Supreme Court traditionally read the phrase "life, liberty or property" as an undifferentiated whole, giving individuals the right to appropriate NOTICE and hearing whenever the government subjected them to "grievous loss." This broad interpretation, however, was often limited by the RIGHT-PRIVILEGE DISTINCTION, according to which benefits that the government was not legally obligated to grant could be denied or terminated without constitutional constraint. Thus, a "grievous loss" occasioned by a denial of "largess" would not trigger constitutional requirements of fair procedure under the due process clause.

In the years following WORLD WAR II, as the involvement of government in social welfare programs and the domestic economy continued to increase, it became clear that government allocation of largess constituted a powerful mechanism for government oppression if left unconstrained. In GOLDBERG V. KELLY (1970), in the course of an opinion imposing constitutionally mandated procedural requirements on the termination of WELFARE BENEFITS, the Court announced in obiter dictum the elimination of the largess or privilege exception to the demands of due process. The claim that "public assistance benefits are a privilege and not a right" was unavailing, according to Justice WILLIAM J. BRENNAN, because "welfare benefits are a matter of statutory entitlement for persons qualified to receive them," functioning more like "property" than "gratuity." The loss of benefits imposed a "grievous loss" and thus called forth the demands of due process.

Two years later, in BOARD OF REGENTS V. ROTH (1972) and Perry v. Sinderman (1972), the Court moved the concept of "entitlement" from the margins of due process doctrine to its core. In passing on the claims of untenured professors employed by state colleges to hearings before being dismissed from their posts, the majority opinions of Justice POTTER STEWART took the position that it was not the "weight" of interests affected by public action that invoked the...