The Constitutional Relevance of the Employer-Sovereign Relationship: Examining the Due Process Rights of Government Employees in Light of the Public Employee Speech Doctrine

22 Pages Posted: 20 Nov 2007

See all articles by Patrick M. Garry

Patrick M. Garry

University of South Dakota - School of Law

Abstract

Examining the Due Process Rights of Government Employees in Light of the Public Employee Speech Doctrine examines the case law and rationale underlying the rule that public employment qualifies as property under the Due Process clause. Traditionally, the kind of property entitled to due process protections did not include the expectation of continued government employment. But during the rights explosion of the 1960s, the court extended due process protections to a wide range of government benefits and programs, including public employment. This extension, however, departed from the historic grounding of constitutional rights in the citizen-sovereign relationship, with, due process rights now conferred upon individuals not as citizens but as public employees.

An analogous situation exists in connection with the First Amendment rights of public employees. The doctrines articulated in this area have continued to incorporate the government-as-sovereign versus government-as-employer distinction. Indeed, the Supreme Court has recently imposed an even more rigid citizen-employee distinction on the type of public employee speech receiving constitutional protection. According to this newly articulated doctrine, the citizen-employee test is a determinative of whether the individual is to enjoy First Amendment rights. If an individual speaks as a citizen, he or she enjoys full constitutional protection; but if that individual speaks as an employee, he or she only receives the protections flowing from the employment relationship. The Article argues that this same approach should be taken with respect to the due process property rights of public employees. For instance, if an individual acquires an expectation of future employment only because of his or her status as a government employee and not as a citizen, then no constitutional due process rights should arise.

Keywords: Public Employee Speech Doctrine, Due Process Rights, Government Employees, Fifth Amendment, Constitution, Property Rights

JEL Classification: K1, K3, K10, K19, K30, K39

Suggested Citation

Garry, Patrick M., The Constitutional Relevance of the Employer-Sovereign Relationship: Examining the Due Process Rights of Government Employees in Light of the Public Employee Speech Doctrine. St. John's Law Review, Vol. 81, No. 4, 2007, Available at SSRN: https://ssrn.com/abstract=1028840

Patrick M. Garry (Contact Author)

University of South Dakota - School of Law ( email )

414 E. Clark Street
Vermillion, SD 57069
United States

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