PROCEDURAL DUE PROCESS OF LAW, CIVIL

The Fifth Amendment forbids the United States to "deprive" any person of "life, liberty, or property without dueprocess of law." The fourteenth amendment imposes an identical prohibition on the states.

Due process is the ancient core of constitutionalism. It is a traditional legal expression of concern for the fate of persons in the presence of organized social power. The question of according due process arises when governments assert themselves adversely to the interests of individuals.

In modern usage "due process" connotes a certain normative ideal for decisions about the exercise of power. Very broadly, it has come to mean decisions that are not arbitrary, but are aligned with publicly accepted aims and values; are not dictatorial, but allow affected persons a suitable part in their making; and are not oppressive, but treat those affected with the respect owed political associates and fellow human beings. It is from the liberal individualist tradition that these abstract due process standards—of reason, voice, and dignity—have drawn their more concrete content. That content includes the definition of proper aims for state activity, the canons of legitimating participation and consent, and the conceptions of human personality that set the threshold of respectful treatment.

The law distinguishes between "substantive" and "procedural" due process. An arbitrary or groundless decision may violate substantive due process regardless of how it came to be made. o'connor v. donaldson (1975), for example, held that no antecedent procedure will justify incarceration of a harmless eccentric. Conversely, a peremptory decision may violate procedural due process regardless of purposive justification. Guilt in fact will not justify sudden, final dismissal of a faithless government employee without a hearing, as the Supreme Court stated in arnett v. kennedy (1974). The due process claim is "procedural" rather than "substantive" when it questions not the state's authority to impose the harm in question by an adequate decision process, but rather the adequacy of the process actually used.

Of course, procedural demands gain much of their power from their perceived contribution to substantive accuracy and enlightenment. Justice felix frankfurter stated in joint anti-fascist committee v. mcgrath (1951): "No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and an opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done."

The focal concern of procedural due process is the set of procedures, epitomized by the judicial trial, whereby governing rules and standards are brought to bear on individuals in specific cases. The doctrine also has some further extension to the formation of the governing rules and standards. Due process can support a claim for direct voice in the formation process, for example, by industry members regarding regulatory standards under consideration by an administrative agency. It can also be the ground of an objection to the nonrepresentative character of the political process in which a standard originates, for example, a restriction on professional entry adopted by a board composed of self-interested professionals. There may also be a due process failure in the way a legal standard is formulated. The standard may be too vague and ill-defined to ensure even-handed application or allow for effective submission of proofs and arguments by someone contesting its application; or, conversely, it may be so narrowly drawn as to represent an arbitrary or vindictive discrimination against a disfavored few. Lawmaking defects of these various kinds are chiefly the concern of doctrines of separation of powers, unconstitutional delegation, vagueness, and prohibition of bills of attainder, but they cannot in practice be held entirely separate from procedural due process claims.

In Joint Anti-Fascist Refugee Committee v. McGrath Justice Frankfurter invoked a history in which the adversary judicial trial has dominated our law's vision of procedural due process, as the model of a procedure designed to assure reason, voice, and dignity to individuals threatened with harm by the state. Criminal due process shows the fullest development of the adversarial model, just as criminal proceedings tend to maximize the conditions bespeaking the need for adversarial safeguards: charges specifically directed against the accused individual, by highly visible officers acting in the state's name, threatening not only tangible deprivation of liberty or wealth but also public degradation. Some state-initiated proceedings against individuals, such as those brought to establish paternity or terminate parental status, while nominally civil in character, resemble criminal prosecutions in their accusatory and stigmatic implications or in the gravity of their threatened sanctions, leaving little doubt about the need to grant respondents something approaching the full set of due process safeguards. Such safeguards were required by the Court in lassiter v. department of social services (1981). As cases of impending state-imposed harm depart further from the criminal prosecution paradigm, however, they reveal that puzzling issues of political and legal principle are latent in the general ideal of due process. Such cases pose two distinct questions for due process doctrine. First, does the occasion demand any kind of proceeding at all? Assuming an affirmative answer, the second question is, what process is due?

Events that from certain perspectives are describable as deprivations of life, liberty, or property in which the state is implicated—for example, a creditor acting under a legal privilege to repossess consumer goods from an assertedly defaulting debtor—may occur with no provision in the law for any process at all. The most theoretically telling of recent judicial encounters with due process doctrine has been concerned with defining the occasions when some trial-type process is constitutionally required.

Due process further stands for a constitutionally mandated procedural code for the fair conduct of whatever trial-type proceedings are to occur. In this second aspect, due process doctrine is a compendium of answers to such varied questions as: May the hearing be postponed until after the onset of the deprivation (such as a summary suspension of a student from school) or must there be a predeprivation hearing? May the state depart from common law rules regarding hearsay evidence, allow its judges to interrogate witnesses, use publication rather than personal contact as a means of notifying concerned parties of pending proceedings, or deny parties the assistance of counsel in small claims tribunals?

The answers found in due process doctrine to such questions will bind a government just insofar as it chooses, or is required by the first aspect of the doctrine, to use judicial-type forums or trial-type proceedings to carry out their pursuits. The chief problems posed by such questions are the recurrent ones of judicial review and constitutional interpretation : from what sources, by what modes of reasoning, shall the answers be drawn, given the breadth and imprecision of constitutional text? Historically, the main methodological alternatives and debates have arisen in the context of criminal prosecutions and been thence carried over to the civil side.

Constitutional claims to trial-type proceedings are most obviously compelling when individuals stand to be harmed by actions of officials performing state functions or wielding state powers. Yet even in such cases the individual interests at stake may be found insufficient to call due process rights into play. On a textual level, the question plainly is whether the affected interest is identifiable as "life, liberty, or property." History, however, discloses contrasting approaches to that question. It was once commonly supposed that any serious imposition on an individual—any "grievous loss"—could qualify as a constitutionally significant deprivation. A chief feature of contemporary due process doctrine is that the potency of a harm as a due process trigger turns not on such an ordinary assessment of its weight or practical severity but rather on a technical, categorical judgment about its legal "nature." In adjudicating what categories of interests legally qualify as "life," "liberty," or "property" for due process analysis, the Court has drawn eclectically on sources both naturalistic and positivistic—on both a higher law tradition and on currently enacted law.

This eclecticism, and indeed the entire complex practice of categorically excluding some concededly weighty interests from due process protection, has apparently evolved out of the Court's encounters with modern welfare state activism. Consider the case of a government worker unceremoniously fired, or of a disability pensioner whose monthly payments are cut off. In such cases the underlying due process values of reason, voice, and dignity may seem to call as strongly for a chance to be heard as in cases of revocation of a professional license or dispossession of land or goods. Yet neither a government job nor a disability benefit is "property" in the common speech of our own culture or that of the constitutional Framers; and although their loss might be called a loss of liberty, to speak so broadly would bring within the sweep of procedural due process many cases that evidently do not belong there, for example, denial of admission to a state university.

The Court's response, in cases like goldberg v. kelly (1970) and bishop v. wood (1976), has been to say that "property" may, indeed, include all manner of beneficial relations with the state or others, but only insofar as those relations are legal entitlements in the sense that explicit (or positive) law protects against their impairment. Thus a probationary employee lacking contractual term or statutory tenure may be peremptorily dismissed and the mere applicant peremptorily rejected; but the tenured employee has a right to be heard on the question of cause for dismissal, and the disability claimant under a statute containing definite eligibility rules may not be delisted—or even denied initial admission to benefits—without some opportunity to be heard on the issue of eligibility.

The method of equating due process protected "property" with positive legal entitlement—that is, by reference to clearly ordained, subconstitutional law—has several attractive features. It flows easily from the observation in board of regents v. roth (1972) that a chief purpose of "the ancient institution of property" has been to "protect … expectations upon which people must rely in their daily lives" against being "arbitrarily undermined." Moreover, the positive-entitlement conception makes a neat fit with the idea that a fair hearing is the nub of due process. Entitlement makes directly clear what the hearing shall be about, for any law framing an entitlement must specify issues available for contest by anyone complaining of deprivation. Finally, entitlement analysis may seem to keep the judiciary clear of imposing on popularly accountable branches of government any political values or ends not accepted by those branches themselves. A judge enforcing due process rights appears to do little more than take seriously the decision of the lawmakers to create the entitlement in the first place.

The Court on some occasions has gone so far as to say that no interest qualifies as due process protected property except insofar as a legal rule safeguards its continued enjoyment. It seems clear that such statements cannot be taken literally. For example, the Court consistently refuses to approve procedures involving state officers in the repossession of goods bought on credit, without affording a prompt hearing to the buyer, no matter how clearly the applicable state law states that the buyer's entitlement to continued possession is to lapse upon the creditor's filing of notice of default (as distinguished from a judicial finding of default). Here it must be the brute reality of the buyer's established possession of the goods that comprises the constitutionally protected property, regardless of the explicit legal rules concerning its protection or duration.

The possession cases illustrate the naturalistic or higher law side of the Court's eclectic method of interest characterization. Protection of established possession against disorderly or unjustified incursion is an ancient fixture in both the rhetoric and the practice of Anglo-American common law and liberty. There are other common liberties similarly, if not all quite so anciently, esteemed: personal mobility and bodily security; liberties of conscience, intellect, and expression; domestic sanctuary, marital intimacy, and family solidarity; occupational freedom and professional autonomy. Although some of these interests find mention in the Bill of Rights, they mostly lack specific constitutional recognition.

The Court has used the "liberty" branch of the due process guarantee as a warrant for procedural protection for such interests, quite apart from their status as entitlements under positive law—and without overprecious worry about their status at ancestral common law. Regardless of whether the state's law purports, or ever did purport, to make into legal rights a schoolchild's security against corporal punishment (ingraham v. wright, 1977), a parent's retention of child custody (Santosky v. Kramer, 1982), or a parolee's preference for remaining at liberty (Morrissey v. Brewer, 1972), those interests have been held protected, by the due process clause itself, against peremptory impairment by state action. They are treated as constitutional entitlements regardless of whether they are statutory ones. It is easy to imagine why naturalist as well as positivist elements thus enter into the Court's characterizations. Welfare state activism positively invites forms of reliance and dependence which, however historically novel, evoke the essential purposes of due process; but the activist state is also prone to tread insensitively on old but still vital concerns that courts recognize as traditional freedoms.

The conclusion that an interest jeopardized by government action does qualify as someone's "life, liberty, or property" does not end the due process inquiry, for the question then remains of how much "process" is "due." It has been said that due process entails, at a minimum, "some kind of hearing" for the exposed individual. Precisely what kind depends on a judicial assessment: one which, according to the formulation in mathews v. eldridge (1976), is supposed to take account of the gravity of the individual interest at stake, the utility of the requested procedures in avoiding factually misinformed or legally erroneous decisions, and the cost of those procedures to the pursuit of legitimate state objectives. The results of such a calculus can range from the heavy procedural armor available to criminal defendants in capital cases to the simple "opportunity to present his side of the story" that, under goss v. lopez (1975), is due a student facing a short disciplinary suspension from school.

An important and oft-contested feature of the constitutionally guaranteed process is its timing relative to the deprivation. The Court long stood by the general proposition that (apart from "emergency" situations, such as seizure of contraband) due process meant predeprivation process. The Court continues to insist on some opportunity for in-person hearing prior to "core" deprivations such as dispossession of tangible property. In several cases, such as Arnett v. Kennedy and Mathews v. Eldridge, involving government jobs and other "benefits," the Court has accepted postponement of a live hearing until after the fall of the axe, when there has been predeprivation notice and opportunity for written protest, as long as there is adequate assurance for reparation in case the deprivation is eventually found unjustified.

Under pressure of the "mass justice" conditions imposed by modern governmental benefit programs involving very large numbers of eligibility decisions, there has been indication in recent cases and commentaries of tolerance for an alternative due process model, one less concerned than the traditional trial-type model with participation values. In this alternative managerial model, the measure of due process is not the quality of the opportunity given affected individuals for a say in the resolution of their own cases but quality control in the production of decisions. The aim is not voice for the individual but accuracy in the aggregate of the resolutions reached over a period of program administration. As advocates of this alternative model recognize, two factors are required to justify the model's use in any given setting: first, the relative dominance of individuals' interests in receiving their entitlements over their dignitary interests in participation; and, second, the value of such a systems management approach in maximizing the receipt of entitlements.

When judges find constitutional protection, under the broad cover of "liberty," for selected interests not specified as rights by constitutional text or other clearly uttered law, and when they determine just what form and quantum of process is "due" in respect of particular kinds of deprivations, they have obviously entered on the work of ranking substantive ends and values. Yet courts doing this kind of due process adjudication have not evinced great worry about usurpation of the lawmaking function. One reason may be that by merely requiring the state to provide some kind of hearing when it acts adversely to some individual's interests, a court does not consider itself ultimately to be preventing lawmakers from reaching whatever substantive results they choose.

However, the judicial act of fashioning procedural requirements, and attaching these to a select set of liberties, is not without substantive force. Procedural requirements can place serious practical obstacles in the way of legislative pursuits. They may be expensive. They may cause a formalization or distancing of some relations that lawmakers could reasonably prefer to leave more informal, close, or open, such as the relations among teachers and students in a school. They may deter valued candor—as from evaluators of candidates for jobs, promotions, university admissions, professional licenses—insofar as due process entitles the subjects of adverse reports to disclosure or confrontation. Procedural requirements may thus force lawmakers to weigh some programmatic objectives against others that would be jeopardized by pursuing the former within the procedural rules laid down by courts.

Due process protection for interests that are not entitlements established by positive law may have a subtler substantive import. If the jeopardized interest enjoys no specific protection under any law aside from the due process clause itself, there is no obvious focus for the required process. A hearing on the issue of whether the contested deprivation is "without due process" may seem pointless, lacking some legal restriction on the conditions in which the deprivation is authorized. This problem has arisen in a number of cases involving dispossession of public housing tenants, when neither the laws governing the housing programs not the leases issued to tenants purported to restrict in any way the power of administrators to evict tenants at any time, for any reason or no reason.

Courts in this situation may supply the missing substantive entitlement on their own, by finding in the due process guarantee a protection against deprivations not rationally related to the purposes of the governmental activity in question. Thus a court may bar a public housing administrator from evicting a tenant who has been cohabiting with a nonspouse, if the court concludes that excluding the cohabitation is not rationally related to the court's understanding of the purposes of public housing. In such a case, the crossover from procedural to substantive concerns is glaringly evident.

A similar crossover is less evident, but still detectible, when a court responds to the lack of a positive law entitlement by requiring the state itself to enunciate some restrictions of purpose or circumstance on lawful impairment of the protected interest, which can provide a basis for due process hearings when official deprivations impend. For the court must then stand ready to decide whether the state's restrictions measure up to constitutional standards of protectiveness. A statute solemnly declaring that tenants may not be evicted "except as the Administrator shall decide is required for the general good" could not satisfy a court determined to afford procedural due process protection to the tenant's possessory interest viewed as an entitlement.

The alternative possibility, of requiring procedural protection even in the absence of legal restrictions on official discretion, rarely seems to have caught the Supreme Court's attention. Responsible officials, even when legally free to act at will, can always try to explain their decisions to persons adversely affected, and give the latter a chance to respond. Such an interchange will sometimes make a practical difference, by changing the officials' perceptions of the relevant facts or values. But even when it does not it may well serve any or all of the elemental purposes of due process: ensuring a voice in decisions for affected individuals, securing their recognition as persons deserving respect, and promoting consistency of official actions with goals and values that responsible officials are prepared to state and defend publicly.

Why has such a view of procedural due process, as serving process values apart from the aim of ensuring that persons receive the treatment legally due them, failed to gain judicial support? Most obviously, such an approach would cast very widely the due process net. If we see due process as broadly concerned with the quality of interaction between official and citizen, rather than more narrowly with vindication of the citizen's legal rights, then any state-inflicted "grievous loss" will seem to bring into play the constitutional standards of decisional procedure—a perhaps daunting result in light of the ubiquity of the welfare state.

The Court's limited extension of procedural protection beyond positive legal entitlements to possessory interests and a select set of liberties seems to represent its aversion to three unpalatable alternatives: first, deformation of the constitutional due process mandate by restricting its reach to entitlements specifically found in subconstitutional positive law; second, intrusive overextension of the mandate to all cases of palpably harmful state action; and third, free-form judicial choice among substantive values and policy goals. The Court apparently cannot avoid all three dangers fully and simultaneously. It has needed supplementary techniques to make good the avoidance of both trivialization and globalization of the range of the due process mandate, and these techniques have put heavy pressure on both doctrinal shapeliness and judicial self-discipline.

For example, the danger of trivialization constantly lurks in a crucial indeterminacy in the concept of legally defined entitlement as the equivalent of due process protected property. The problem is that of distributing components of a positive legal regime between the categories of substance and procedure. Suppose, as in Bishop v. Wood, that police officers are dismissable whenever, but only when, a designated superior has given the employee a written notice of dismissal for malfeasance in the performance of duty. Straightforwardly read, the law means to make the legal condition of dismissability not actual malfeasance but delivered written notice of dismissal. An entitlement-based due process doctrine then would logically require a hearing but only on the bootless issue of delivery of the notice. A judge can logically avoid that result by reading the law to condition dismissability on actual malfeasance, although that reading will make the law unconstitutional if the law includes no adequate provision for hearing on the malfeasance question. Whether such a reading seems unacceptably self-destructive will depend on the primacy of due process values in the reader's constitutional understanding.

Similar puzzles affect questions about whose entitlement is established by a plain statutory restriction on official discretion. A striking example is O'Bannon v. Town Court Nursing Center (1980), where a statute provided for financial assistance to needy elderly persons in meeting their costs of residence in officially approved nursing homes, and also set conditions of approval for the homes. Thus it was apparently unlawful for officials either to deny certification to homes meeting the conditions or to deny benefits to eligible residents of certified homes. When officials proposed to decertify a certain home, its residents claimed a due process right to be heard on the issued of the home's certifiability. The Supreme Court concluded that the residents had no constitutional right to such a hearing because their entitlement was just to benefits while residing in a certified home; the entitlement to certification belonged strictly to the nursing home operators.

Given the close practical resemblance of the residents' interests to the strongly protected interests of tenants in uninterrupted possession, a court could reasonably have concluded that they, too, were entitled to certification of their home if in fact it met the legal standards, and therefore they had due process rights to be heard on that issue. The Court's contrary conclusion was obviously influenced by concerns about overextended application of the constitutional due process mandate.

Claims to due process are not confined to situations in which the claimant's legal posture is defensive or the adversaries are government officials. They may arise also where individuals are exposed to the state's judicial power by their involvement in private legal controversies; and even where (the due process claim aside) there impends no legal proceeding at all but just some harm at a fellow citizen's hands.

The defendant in a private civil lawsuit faces possible deprivation, by officers wielding state powers, of wealth through a money judgment or of personal liberty through an injunctive decree. The occasion is obviously one to activate due process concerns, and civil defendants are held entitled to such procedural due process essentials as a fair and orderly hearing before an unbiased judge.

For reasons not quite so obvious, so are civil plaintiffs. A tempting explanation is that having allowed its courts to take charge of a private dispute, the state is obliged to have them do so in a way that satisfies the due process demand for reason, voice, and dignity. Yet this explanation seems incomplete. Some assistance is better than none. The state does not injure or oppress claimants to whom it offers procedurally flawed assistance against violators of the kinds of interests typically at stake in civil cases, unless the state is affirmatively obligated to secure those interests against violations by private as well as governmental agents. Suppose, for example (as the Supreme Court apparently did in truax v. corrigan, 1921) that the state is constitutionally obligated to protect landowners against disturbance by picketing. On such a view, a disturbed landowner can cite a refusal of protection as a deprivation of property and demand a hearing on the question of the state's justification for refusal. In other words, the landowner can demand a hearing on whether the picketing is for some special reason legally privileged. The state can meet this demand by letting the landowner sue the picketers for injunctive relief, but only if the procedural conditions of the suit satisfy due process standards of fairness from the plaintiff's point of view.

Thus denial of fair procedure to a civil plaintiff comes within the traditional due process concern about injurious treatment of individuals by the state, just insofar as we see the state's failure to protect the plaintiff's interests against the defendant's encroachments as itself a form of injury. Such is the social compact view according to which persons entering political association surrender to the state the use of force, for the safer protection of their several "lives, liberties, and estates." The state's regime of law and order then overrides the natural liberty of self-help, but only by replacing it with the state's obligation to protect.

Some such account seems necessary to complete the explanation of the conceded due process rights of civil plaintiffs. Yet other current law ostensibly rejects this account. United States v. Kras (1973) and Logan v. Zimmerman Brush Co. (1982) together indicate that the state may usually condition a would-be civil plaintiff's access to the courts on payment of filing fees, thus effectively excluding whoever cannot pay. Such a doctrine is hard to square with the idea of a state's affirmative duty to protect the litigable interests of its citizens, arising out of the latter's relinquishment of self-help by private force.

When a government sues a citizen in an otherwise ordinary civil dispute, involving property or contract rights or tort claims, the citizen sued will of course have the due process rights normally enjoyed by privately sued civil defendants. The reverse case, of a civil dispute in which the citizen is the one seeking relief for a trespass, breach of contract, or other civil wrong by a governmental defendant, is complicated by the doctrine of sovereign immunity. In general, that doctrine means that the governments of the states and the Union may not be sued without the consent of their respective legislatures. If the courts find that such consent has not been given, the citizen alleging deprivation by governmental action will lack recourse in the ordinary courts, a situation presenting an obvious and a serious due process concern. In many such cases, the constitutionally guaranteed right of due process must prevail over sovereign immunity and entitle the victimized citizen to relief in constitutional litigation. That would surely be the result, for example, if government officials sought to imprison someone, or seize privately held land or goods, without ever giving the victim a fair chance to contest the legal and factual basis for such action. The citizen would be able to gain preventive relief or compensation in a civil rights action based on the due process clause of the Fifth or Fourteenth Amendment.

The question of due process rights is most puzzling when seizures of possessions, or other violations of core interests generally given legal protection, are carried out by private agents with no apparent state complicity—a finance company sending its own forces to repossess an automobile securing an overdue debt, or a repair shop collecting an unpaid bill by retaining and eventually selling the repaired article. People do not usually take such "self-help" actions, or think them prudent, unless the actions are in some sense authorized, if not positively enabled, by state law. Thus lawmakers may authorize and enable a creditor's private repossession of chattel security by exempting such activity from liability for crime (theft) or civil wrong (conversion of goods). Indeed, the law usually goes farther, making it wrongful for the debtor to resist the seizure by force. The law doubtless otherwise contributes to the ability of creditors to make their seizures effective, as by securing the wealth used to pay for the requisite services. The utility of the repair shop's liquidation-by-sale depends on law allowing extinction of the debtor's legal claim to the goods in favor of the person who buys them from the repair shop. In short, self-help creditor remedies are evidently deliberate creations of state law, particular components of the state's total scheme of legally recognized and sanctioned rights and liabilities. In that sense, at least, the self-helping creditor inflicts significant deprivations under cover of the state's power, while affording no opportunity for the deprivee to be heard on the matter.

Even so, the Supreme Court concluded in flagg brothers v. brooks (1978) that laws authorizing creditor self-help do not in general violate due process. In defense of this result, it might have been urged that the due process requirement is satisfied by the debtor's opportunity to sue later for restorative or compensatory relief in case the creditor's seizure was in fact unjustified. Such a rationale would accord with the holding in Ingraham v. Wright that paddling a student without a hearing comports with due process so long as compensatory relief for an unjustified paddling can be obtained later in a lawsuit. Yet courts have not usually explained in this way their tolerance for unilateral, peremptory creditor self-help, apparently seeing the difficulty of reconciling such an account with prevailing due process doctrine for cases of seizure by state officers, which strictly requires the state to provide some kind of judicial supervision, and a hearing for the deprivee as promptly as the case permits.

Courts instead have seen the issue presented by private self-help activities as one of state action, and, as in the Flagg Brothers case, have concluded that the due process guarantee has no application to such activities however much they may practically depend on the support of law. The reason for this judicial diffidence, as important as it is simple, is the difficulty of distinguishing in principle between the due process claim raised by the case of the self-helping creditor and that raised by many, if not all, other cases of intentional or foreseeable infliction, by private agents, of civilly actionable harm, that is, of torts, breaches of contract, breaches of trust, and so forth. Often, if not always, it will be possible to show compellingly how the law has contributed directly to the occasion or motive for committing the injurious act or to the injurer's practical power to inflict it, or to the practical defenselessness of the victim. But the idea of a constitutional right to a predeprivation hearing, or even an accelerated post-deprivation hearing, in all cases of ordinary private legal wrongs stretches due process too far. Every ordinary contract dispute cannot be a constitutional case.

Thus courts have been led to conclude that the deprivations of property wrought by private creditor self-help are not violations of due process for the reason that they are not attributable to the state. The position is that due process generally is not concerned with exercises of power by persons not identified with the state or perceived as acting on its behalf, in forms not conventionally understood as distinctive to the state. This position is unfortunately at odds with the premise which apparently underlies recognition of the due process rights of civil plaintiffs—the premise, that is, of an affirmative state duty to protect the persons and possessions of inhabitants against gross violation by private as well as public agents.

The difficulty is of a kind that logically must appear somewhere within any body of constitutional doctrine in which a first aim is that of securing spheres of individual liberty against social coercion, and a first institutional device is that of legal rights, themselves an obvious form of collective force. In the constitutionalist vision there is indissoluble tension between law's aim, personal liberty, and its instrument, state power. In this field of contradictory forces are situated all legal rights, including due process rights. Thus it happens that the same due process claims which from one viewpoint represent the state's liberating engagement to protect each person against incursion by others or by the social aggregate, from another perspective represent the state's oppressive oversight of affairs perhaps better and more properly left to the concerned individuals.

In no setting is the dilemma more evident than in that of the family, which in our culture has most strongly represented the value of social solidarity as opposed to that of individuals severally free to treat at arm's length in civil society. parham v. j. r. (1979), a case in which due process claims were asserted on behalf of a minor child being committed by parents to a mental institution, illustrates the difficulty. The Court there assumed "that a [minor] child has a protectable interest … in not being … erroneously" committed; said that parents must be generally supposed to act in their children's best interests; said that "the risk of error inherent in the parental decision … [is] sufficiently great" that parental discretion cannot be "absolute and unreviewable"; and concluded, not resoundingly, that "some kind of inquiry should be made by a 'neutral fact finder' to determine whether … [the child] satisf[ies] the medical standards for admission."

Of the largest questions of current meaning and future role for due process in our civic culture, the Supreme Court's irresolute posture in the Parham case is emblematic. If due process is an epitome of libertarian law, it is also—by the same token, Max Weber would advise—an epitome of bureaucratic law. Due process as we know it is a hallmark of a formally rational law designed to liberate as it organizes and orders: to liberate energy and will by the promise of regularity, calculability, and impartiality, and by insistent strong demarcation of the private from the public sphere.

But our due process is a hallmark, too, of hierarchical formal ordering; that is, of ordering by preordained rules emanating from specialized governing authorities (representative or accountable as those authorities may be, of or to the governed). There are always spheres of life in which due process is problematic because those spheres want ordering that is more contextual and less abstract, more responsive and less prefigured, more empathic and less impersonal, more interactive and less distanced, more participatory and less authoritative, than what "due process" has traditionally signified. Conversely, "due process" invokes sensibilities resistant to a general movement toward a more thoroughly democratized polity, in which the personal and the political aspects of life would be much less sharply separated than we have tended to keep them. In any such movement due process would necessarily be transformed—transformed but not discarded, since we are unlikely to forsake the ideals of reason, voice, and dignity, or the conviction that individuals are not just parts of social wholes.

Frank I. Michelman
(1986)

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