Defining Property Under The Due Process Clause Of The United States Constitution

The American Federal Constitution consists a clause called the Due Process Clause,which means that “no one shall be deprived of life,liberty or property without due process of law”.For a long time,this clause has been used to protect citizen’s private property.With the emergence of social welfare administration,due process clause was used to expand the meaning of property.This passage aims to show the close relationship between due process and property by illustrating classical cases decided by the Supreme Court and relevant intellectual discussion.The first chapter introduces the conception of property in American constitution.In the early times of this country,property is regarded as a “natural right” which equals natural justice.Accordingly,property was defined as a right which rejects any limitation as well.However,property gradually became a legal right due to the rise of legal realism,which means that the state can limit property right with due process and just compensation,it is no longer an unlimited right.The second chapter explains how the American Federal Constitution protects the property right with the Just Compensation Clause and Due Process Clause.Just Compensation Clause is used to limit the government’s discretion when citizen’s acquired property is being infringed.Substantive Due Process protects the “economic liberty” and basically has nothing to do with the commonly perceived “property”.Procedural Due Process is the one used to define what is property and what property truly concludes.The third chapter examines the relationship between due process clause and “new property” theory.Before 1970 s,the “privilege-right” distinction is well-retained,the legal community regarded entitlement provided by the government as “largeness”,which does not belong to “property” in the due process clause.However,such distinction was canceled in Goldberg v.Kelly.More importantly,the Court established the “independent source” principle in Board of Regents v.Roth,which made it clear that property right is a right created by state law,rather than the Constitution.The fourth chapter concentrates on the “Bitter with Sweet” theory originated from the due process clause.In Arnett v.Kennedy,the “Bitter with Sweet” theory was brought up as a mean to reduce the procedural protection a property right can enjoy from the Constitution.In Bishop v.Wood,this theory was recognized by the majority in the Court.However,this infamous standard was finally overturned in Cleveland Board of Education v.Loudermill by an overwhelmingly majority.The fifth chapter illustrates how property was redefined under the due process clause in Town of Castle Rock v.Gonzales.The Court suggested that the right to police protection cannot constitute property,as such entitlement lacks ascertainable monetary value and only indirectly benefits the protected person.The dissenting opinion and a number of scholars critiqued the Court’s decision,saying that it is stipulated that each state has the final say on what constitutes property;in addition,the precedents cannot be used to support the majority opinion as well.The sixth chapter concludes the dissertation with a reflection on how the Court protected property with the due process clause.First,it is unnecessary to worry about the continual expansion of property right.Because property is defined by the social development throughout history,government still remain its discretion after the “flexible due process” principle was established,the Supreme Court played its role in protecting individual perfectly as well.Second,in the foreseeable future,procedural due process will be used to protect property,it is unlikely to witness the re-emergence of substantive due process.Third,the “Dignitary Theory” proposed by Professor Marshall is surely appealing,but the Court will commit to the positivist approach established in Roth rather than the Dignitary Theory which relies heavily on natural right tradition.The Chinese legal community should learn from the American counterpart so that we can update academia’s conception of property and expand the extent of property right.Meanwhile,we should localize the American experience by referring to our own Constitution and social development.