Which of the following is a right protected through procedural due process

The Concept of Negative Liberty

The U.S. Constitution is often referred to as a promise of “negative liberty.” What does that mean? “Negative liberty” embodies two related concepts. Both are included in the following description by the Supreme Court:

The [Due Process] Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the state itself to deprive individuals of life, liberty or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. …Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.

(DeShaney v. Winnebago County, 1989)

First, the phrase “negative liberty” reflects the distinction between freedom from (negative), as opposed to freedom to (positive). The Constitution does not require the government to provide even basic necessities to the people, as constitutions in some other countries do. There is no federal constitutional right to food or health care or shelter, for example.

Second, the Constitution seeks to protect individuals from actions by government, but not from actions of private parties such as corporations. The overriding concern of the Framers was the fear that the powers of government could overwhelm and suppress the liberty of individuals. For that reason, the Constitution has been interpreted to protect individuals only from actions taken by some arm of government—federal, state, or local.

This does not mean that no laws restrict the actions of private individuals or entities such as corporations. Congress has the power to enact, and frequently has enacted, statutes that regulate myriad forms of private conduct, such as antitrust laws or environmental protection laws, and that provide selected benefits, such as medical insurance for persons over 65 or food stamps for the poor. Because it is elected, Congress acts as an arm of “the democratic political processes” that the Court was referring to in the DeShaney quote above. As we know, statutes must fall within the scope of the powers allocated to Congress in Article I of the Constitution.

This chapter will discuss only constitutional rights, not individual rights created by statutes passed by Congress, which will be the subject of Chapter 10. Many examples are drawn from health or emergency contexts, and we will see the importance of incorporating principles of individual liberty into the law of emergencies. Government agencies are almost always the primary actors in the response to an emergency, and whenever government action is involved, the Constitution applies and must be adhered to. What happens in situations in which government officials assert a claim to act outside the Constitution because of the urgency of the situation? Those are some of the problems that we will analyze.

Zones of Privacy—Griswold v. Connecticut26

One specific concept that was noted in the later decisions is that of zones of privacy. This concept was first raised in 1965 in the case of Griswold v. Connecticut. In Griswold, the U.S. Supreme Court reviewed a Connecticut statute that prohibited the use of contraceptive devices by married couples and the dissemination of medical advice about contraceptives by the couples' physicians. The Supreme Court invalidated the Connecticut law, citing the Due Process Clause of the Fourteenth Amendment and stating the following:

Marriage is a relationship lying within the ‘zone of privacy’ created by several fundamental constitutional guarantees. And, it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship … Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship… We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system…

… In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment. I add these words to emphasize the relevance of that Amendment to the Court's holding.

… This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments which express fundamental personal rights. The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.

In this landmark decision the Supreme Court stated that “zones of privacy” exist into which the government may not easily enter.27

4 The American Application

Although a showpiece in early US adulation of ‘liberty’, the Bill of Rights was barely evident as a legal barrier prior to the Civil War. The Marshall Court decisively slammed the door shut on any effort to use the amendments as checks on state government in Barron vs. Baltimore (1833). At the federal level it was congressional not judicial decision making that ‘first crystalized the meaning of the rights of free speech and press’ by returning fines, assessed under the Alien and Sedition laws. The due process clause of the Fifth Amendment is mentioned in cloudy passage in the Dred Scott case (1857), but it hinges on issues of citizenship and legal standing rather than liberty.

Not until the twentieth century era, in which the Supreme Court began to apply national standards to state regulation of such matters, criminal law, and the rights of freedom of expression, did the Supreme Court seriously implement the Bill of Rights against the national government. This was partly a product of the relatively limited reach of the national government during the nineteenth century, but it also reflected a shift in judicial sensibility in the twentieth. Nineteenth-century adjudication centered its allocation of power between nation and state. The concern for liberty dealt primarily with property and limits on regulation. The twentieth century has witnessed a constitutional sea change with the Bill of Rights providing the impetus. This has been a two-tier development. Under the rubric of ‘liberty,’ which states under the Fourteenth Amendment must provide, the Supreme Court had required states to meet the standards of most of the Bill of Rights (on some procedural matters, e.g., size of juries, the standard is less rigorous than that applied to the federal government). At the same time, the federal government has also been held to more rigorous supervision under a concept (best expressed in footnote 5 of The Carolene Products decision of 1937) that courts have a special duty to protect those groups and individuals who are disadvantaged politically, especially where the Constitution confers specific rights.

Jurisdiction requires a meaningful connection between the defendant and the forum state

As of this writing, the most recent and definitive word on the subject of personal jurisdiction comes from the United States Supreme Court’s 2014 decision in Walden v. Fiore.30 The Court’s unanimous opinions described the issues as follows:

The Due Process Clause of the Fourteenth Amendment constrains a State’s authority to bind a nonresident defendant to a judgment of its courts. Although a nonresident’s physical presence within the territorial jurisdiction of the court is not required, the nonresident generally must have certain minimum contacts such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.31

The inquiry into whether a defendant has sufficient “minimum contacts” with a State “focuses on the relationship among the defendant, the forum, and the litigation.”32 That “relationship must arise out of contacts that the defendant himself creates with the forum State,”33 and “looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.”34 “[T]he plaintiff [who lives in the forum State] cannot be the only link between the defendant and the forum. Rather, it is the defendant’s conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him.”35

A line of cases beginning with the Supreme Court’s 1984 decision in Calder v. Jones36 found sufficient minimum contacts, and hence jurisdiction, by focusing the effect that a defendant’s remote conduct had in the forum State. In that case, the Florida-based defendant published a newspaper article that libeled a California celebrity; the Court upheld the exercise of jurisdiction in California because the “brunt” of the injury caused by that libel was felt in California.

The Court’s 2014 decision in Walden reigned in the application of this “Calder effects test.” In Walden, a Georgia policeman seized funds at an airport belonging to a Nevada resident. The Nevada resident sued in Nevada, and argued it was fair to subject the officer to jurisdiction there because he knew that his actions would have consequences in Nevada. Relying on Calder, the Court of Appeals agreed. But the Supreme Court unanimously reversed, holding that “[t]he proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful way.”37 This officer’s actions, the Court explained, were not inherently aimed at Nevada. The connection to Nevada existed only because that was “where respondents chose to be at a time when they desired to use the funds seized by petitioner. Respondents would have experienced this same lack of access in California, Mississippi, or wherever else they might have traveled and found themselves wanting more money than they had.”38

Because mobile apps can be downloaded and used anywhere, this principle will be particularly instructive in applying personal jurisdiction law to digital content. Applied to AR and its particular connection to distinct places, however, Walden may actually increase the likelihood of jurisdiction being exercised.

2 Early Labor Legislation and the Doctrine of Substantive Due Process

Before 1900, most labor law was state law rather than federal law. Some labor organizations successfully pressured state legislatures to enact legislation favorable to workers, such as legislation exempting trade unions from the conspiracy laws, guaranteeing workers payment of wages, restricting the hours of work, and providing health and safety protections for minors and women. There was no federal labor legislation in these areas. The Supreme Court adhered to a narrow interpretation of the Commerce Clause that said that Congress had no power to regulate private employment except on the railroads. In addition, in the early twentieth century, Supreme Court adopted a doctrine, known as ‘substantive due process,’ that said that legislative protection for labor rights and employment standards was a violation of freedom of contract and therefore unconstitutional under the Due Process clauses in the 14th and 5th Amendment. The doctrine was articulated in the cases of Lochner v. New York, 198 U.S. 45 (1905), striking down a state law establishing maximum hours of work for bakery employees, and U.S. v. Adair,208 U.S. 161 (1908), invalidating a federal law prohibiting railroad employers from discriminating against employees because of union membership.

Ironically, for the first quarter of the twentieth century, the only federal legislation that had generalized application to American workers was not labor legislation but anti-monopoly legislation intended to break up the trusts and to promote business competition. The Sherman Antitrust Act, enacted in 1890, declared illegal ‘every contract, combinations in the form of a trust or otherwise, or conspiracy, in restraint of trade or commerce among the Several states’ (15 U.S.C. X 1 et seq). At the time of its passage, proponents believed it was a business regulation that would help restore free competition to the product markets (Sanders 1999). However, in 1908, the Supreme Court held that the Sherman Act applied to labor unions, and imposed severe sanctions on union members for conducting a product boycott in support of organizing efforts (Loewe v. Lawlor,208 U.S. 274 (1908)). The case was a bitter lesson for the labor movement, effectively ending the use of product boycotts in union organizing (Ernst 1995).

After 1908, the American Federation of Labor (AFL) began a legislative campaign to obtain a labor union exemption from the Sherman Antitrust Act. It joined forces with the Democratic Party in the congressional and presidential elections, and was rewarded for its efforts by the enactment of the Clayton Antitrust Act of 1914 (15 U.S.C. X 12 et seq). On the surface, the Clayton Act created an immunity for labor from the operation of the Sherman Antitrust Act. But in 1921, in Duplex Printing Press v. Deering, 254 U.S. 443 (1921), the Supreme Court gave the Clayton Act a narrow interpretation and held that it did not protect unions that were engaged in secondary activity from antitrust liability.

Despite the legal setbacks for unions in the 1920s, the railroad unions succeeded in obtaining legislation that gave them rights to organize and bargain collectively. After many decades of tumultuous labor relations and several unsuccessful regulatory attempts, the railroad unions and the railroad operators together drafted the Railway Labor Act of 1926. The resulting statute gave railroad workers a right to organize, protected them against dismissal for union activity, and imposed on unions and railroads a duty to bargain and to maintain the status quo while negotiations were in progress.

4 Jurisdiction

In its broadest sense, jurisdiction is the power of a decision-maker to resolve a dispute in a binding manner. When, as in the context pertinent here, the decision-maker is a court or other tribunal, the dispute is resolved through adjudication and the power to do so is called judicial or adjudicatory jurisdiction. It can be contrasted with legislative or prescriptive jurisdiction, which is the power to enunciate norms governing the merits of the dispute. The source of judicial jurisdiction is the law that constitutes the particular court and thus it is a national or state law rather than a supranational or suprastate law. However, in some countries the exercise of jurisdiction is restricted by international treaties, such as the Brussels-Lugano conventions among several European countries, while in some federal systems like the United States, the exercise of jurisdiction by the constituent states must conform to certain outer limits imposed by federal law, primarily the due process clause of the federal constitution. Although these super-arching sources impose a certain degree of uniformity on the affected states, the jurisdictional laws of the various countries or states continue to differ widely in both nomenclature and substance.

Thus, each state delineates for itself the bases on which its courts are authorized to adjudicate cases with nonlocal elements (jurisdiction in the international sense) and then allocates internally that authority among the various geographical subdivisions or judicial districts within that state (internal or local jurisdiction or venue) and among its various general or specialized courts, tribunals, or other adjudicating agencies in each locality (competence or subject-matter jurisdiction). To render a valid judgment, a court must, in the absence of acquiescence by the defendant, satisfy all three types of jurisdiction.

In the United States, for historical reasons, a state court's interstate or international jurisdiction is divided into personal jurisdiction (in personam) and jurisdiction over things (in rem). Personal jurisdiction, which is the power to adjudicate claims against a defendant and to bind him or her personally, is further subdivided into general and specific jurisdiction. General jurisdiction exists when the defendant is domiciled, incorporated, has its principal place of business, or conducts ‘continuous and systematic’ business in the forum state. Historically, the service of process on the defendant within the territory of the court was also a basis of general jurisdiction but the constitutionality of this basis is now questionable, at least when it is not supported by other defendant contacts. When a court has general, jurisdiction, the court may adjudicate any claims against the defendant, even claims unrelated to the defendant's contacts with, or activity in, that state. In contrast, when a court has only specific jurisdiction, the court may only adjudicate claims against the defendant that arise from the defendant's contacts with, or activity in, the forum state.

Jurisdiction over things is based on the presence of a thing within the territory of the forum state and is subdivided into jurisdiction in rem and quasi in rem. When the lawsuit seeks to determine the parties' rights in, or relating to, that thing, the court has jurisdiction in rem and may adjudicate those rights even if it does not have personal jurisdiction over the defendant. In contrast, when the lawsuit seeks to vindicate claims against the defendant that are unrelated to that thing, the court is said to have quasi in rem jurisdiction. Since 1977, this basis of jurisdiction is—in the absence of other defendant contacts—constitutionally insufficient unless the claim has been previously reduced to a judgment rendered by another court that had jurisdiction over the defendant.

In other countries, jurisdictional bases are in some respects broader and in other respects narrower than those described above. For example, some European countries theoretically allow the exercise of what might be called quasi in rem general jurisdiction, namely, the adjudication of claims against a defendant who owns property within the forum state, even if the claims are unrelated to the property or vastly exceed its value. On the other hand, while most countries agree that the defendant's domicile, incorporation, seat, or principal place of business in the forum state is a basis for general jurisdiction, they reject general jurisdiction based on either service of process alone or ‘doing business’ within the forum state.

Beyond this, most countries and states agree that the defendant's actual or imputed consent is a sufficient basis of jurisdiction even when jurisdiction is otherwise lacking, that contractual claims can be adjudicated in the place where the contract was to be performed, and that claims arising from torts can be adjudicated in the place where the wrong was committed or the injury foreseeably occurred.

Because of the differences between the jurisdictional bases recognized by the various states, but also because, even when they do not disagree, these states may authorize more than one jurisdictional basis for certain categories of cases, a given case may often be subject to the concurrent jurisdiction of more than one state. In such a case, the plaintiff, who always has the choice of where to file the lawsuit, may shop for the most advantageous forum, a phenomenon known as forum shopping. One of the mechanisms devised by common-law systems to discourage this phenomenon is the doctrine of forum non conveniens which allows a court to decline to adjudicate the lawsuit if, despite the existence of jurisdiction, litigation in that state would be seriously inconvenient and another more convenient forum is available to the plaintiff, Another mechanism which is sanctioned in varying degrees by most systems but which is available only when the disputants are parties to a pre-existing contractual relationship, is a choice-of-forum clause, namely a clause by which the parties agree that disputes arising from that relationship will be litigated in the courts of the agreed upon state.

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