Why Should Regulators Have to Listen to You?

by Cass Sunstein

Bloomberg
October 4, 2012

The U.S. Bill of Rights declares that no one may be deprived of life, liberty or property “without due process of law.” The core meaning of this provision is that the government cannot hurt you -- by taking away your freedom or what you own -- without giving you an opportunity to have your say.

This right helps to define liberty under law. Public officials are fallible, and before they take action against you, they should hear you out to make sure that they have the facts straight. Human beings should also be treated with respect. If public officials proceed against you without giving you a chance to be heard, they are treating you disrespectfully.

In light of the defining importance of the due process clause, many people are stunned to learn a remarkable fact: When the government issues regulations, the Constitution doesn’t require officials to listen to you, even if your liberty and your property are at stake.

That is what the U.S. Supreme Court ruled in 1915, in a case with the somewhat ominous name of Bi-Metallic Investment Co. v. State Board of Equalization. The great jurist Oliver Wendell Holmes Jr. made it clear that while the government must give hearings to aggrieved individuals, the matter is different when a lot of people are simultaneously affected: “Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption.”

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