GPO-CONAN-2017-10-15.pdf

796 traditionally the court made this determination

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796 Traditionally, the Court made this determination by reference to the common understanding of these terms, as embod- ied in the development of the common law. 797 In the 1960s, how- ever, the Court began a rapid expansion of the “liberty” and “prop- erty” aspects of the clause to include such non-traditional concepts as conditional property rights and statutory entitlements. Since then, the Court has followed an inconsistent path of expanding and con- tracting the breadth of these protected interests. The “life” inter- 794 452 U.S. at 27–31. The decision was a five-to-four, with Justices Stewart, White, Powell, and Rehnquist and Chief Justice Burger in the majority, and Jus- tices Blackmun, Brennan, Marshall, and Stevens in dissent. Id. at 35, 59. 795 See , e.g. , Little v. Streater, 452 U.S. 1 (1981) (indigent entitled to state- funded blood testing in a paternity action the state required to be instituted); Santosky v. Kramer, 455 U.S. 745 (1982) (imposition of higher standard of proof in case involv- ing state termination of parental rights). 796 Morrissey v. Brewer, 408 U.S. 471, 481 (1982). “The requirements of proce- dural due process apply only to the deprivation of interests encompassed by the Four- teenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.” Board of Regents v. Roth, 408 U.S. 564, 569–71 (1972). Developments under the Fifth Amendment’s Due Process Clause have been interchangeable. Cf. Arnett v. Kennedy, 416 U.S. 134 (1974). 797 For instance, at common law, one’s right of life existed independently of any formal guarantee of it and could be taken away only by the state pursuant to the formal processes of law, and only for offenses deemed by a legislative body to be particularly heinous. One’s liberty, generally expressed as one’s freedom from bodily restraint, was a natural right to be forfeited only pursuant to law and strict formal procedures. One’s ownership of lands, chattels, and other properties, to be sure, was highly dependent upon legal protections of rights commonly associated with that own- ership, but it was a concept universally understood in Anglo-American countries. 1978 AMENDMENT 14—RIGHTS GUARANTEED
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est, on the other hand, although often important in criminal cases, has found little application in the civil context. The Property Interest. —The expansion of the concept of “prop- erty rights” beyond its common law roots reflected a recognition by the Court that certain interests that fall short of traditional prop- erty rights are nonetheless important parts of people’s economic well- being. For instance, where household goods were sold under an in- stallment contract and title was retained by the seller, the possessory interest of the buyer was deemed sufficiently important to require procedural due process before repossession could occur.
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