Notice

AuthorStephen C. Yeazell
Pages1830

Page 1830

When unsure what is right, American society often falls back on a process in which people on all sides of a disputed question have their say before a decision is rendered. Moreover, even if one cannot participate in a governmental decision, our notions of the state require that one know in advance the standards by which officials will judge us. To have one's say or to conform one's behavior to a standard one must know of the proceeding or the standard. Because such knowledge is so essential to this scheme of things, the Constitution at numerous points requires that those affected by governmental actions receive notice.

Clauses as diverse and specific as the requirement that Congress publish a journal and the prohibitions against EX POST FACTO laws and BILLS OF ATTAINDER, as well as the more general requirements of the DUE PROCESS clauses require notice in various circumstances. Because of its generality the due process clause has generated most of the litigation about constitutionally required notice. In PROCEDURAL DUE PROCESS cases courts have struggled to distinguish two situations: those in which persons need have only the opportunity of finding out about contemplated government actions, and situations in which they must receive more individualized attention. The maxim that ignorance of the law is no excuse expresses the proposition that the legislature need not tell each of us that it has passed some law. We rely instead on the hope that our legislators represent us and on the opportunity we have to adjust our behavior after the law takes effect. The Supreme Court has, however, required that laws defining criminal acts be sufficiently specific to enable persons who do look at them to tell what acts are prohibited.

As the focus of government attention narrows from all citizens (the subject of statutes) to more specific contexts, the Constitution requires more elaborate and specific forms of notice, notice that is often linked with a subsequent hearing. Thus the Court has not required the Colorado legislature to notify all the citizens of Denver before altering their property assessments, but it has...

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