Article by Karen H. Flax
In Board of Regents v. Roth, the Supreme Court permitted a state university to terminate a nontenured faculty member without a hearing. Refusing to treat the due process clause of the fourteenth amendment as a general guarantee against arbitrary treatment by state agencies, Roth held that persons have rights to procedural due process only when state agencies deprive them either of federally protected substantive rights or entitlements—that is, liberty and property interests created in some manner by the states themselves. The Roth rule is now known as the entitlement doctrine of the fourteenth amendment. Since Roth, the Court has used the entitlement doctrine to reject procedural due process claims of state prisoners, defamation victims, and governmental employees who claimed to be victims of arbitrary governmental action. The entitlement doctrine has posed a serious theoretical challenge to traditional conceptions of liberty and property. And in its most extreme form, recently rejected by the Court, the doctrine would have enabled states to deny due process for all rights except for specific constitutional rights that the Court has expressly held to be fundamental.
Early in 1980 John Hart Ely called the entitlement doctrine a theoretical and practical “disaster” that had made the Court “look quite silly,” had earned the Court “widespread scholarly condemnation,” and might cause the Court to abandon the entitlement doctrine “sometime within the next thirty years.” A few months after Ely's criticism, however, the Court's decision in Vitek v. Jones created some hope that the entitlement doctrine might not survive so long. This important decision departed significantly from the entitlement doctrine in the area of mental health, suggesting that the Court might restrict or abandon the entitlement doctrine in other areas. This promise was partially fulfilled in subsequent cases involving the liberty interests of prisoners, and in 1985 the Court explicitly rejected the most extreme version of the doctrine, that put forth by Justice Rehnquist. At this writing, a full reconsideration of the doctrine has yet to occur, and a leading observer recently summed up the situation by commenting that the Court continues to be “‘somewhat ambivalent about these problems.” Yet cases decided since Vitek reveal a substantial erosion of the theory that undergirds the entitlement doctrine, notwithstanding some holdings that fail to reflect this theoretical shift.
Behind the entitlement doctrine is an extreme legal positivism that departs from constitutional tradition regarding the source of substantive rights to life, liberty, and property. In recent years, the positivist view of rights has served as the theoretical foundation for conservative opposition to the human rights judicial activism of the Warren era. The history of the entitlement doctrine reveals some of the difficulties with maintaining a positivist theory of substantive rights. The erosion of the entitlement doctrine is, therefore, cause for some gratification during an otherwise bad time for civil liberties in this country.
About the Author
Karen H. Flax. Instructor of Law, Villanova University of Law; B.A. 1980, New College; J.D. 1983, University of Miami; LL.M. 1984, New York University.
Citation
60 Tul. L. Rev. 889 (1986)