(This is the second post in our series about your right to an independent administrative law judge as part of the disability appeal process.)

Let’s talk about the U.S. Constitution.

While some of its text discusses rights and procedures in criminal cases, the Fifth Amendment to the Constitution also states that “No person shall be . . . deprived of life, liberty, or property, without due process of law. . . .”

So the questions arise:

• What “property” is protected?

• What does “due process of law” mean?

Your Social Security Disability Insurance policy is property that is protected by the Constitution.

There are two types of property protected by the Fifth Amendment. The first type of property is called tangible property – things you can touch, like a house or a car or a kitchen blender.The second type of protected property is intangible property, which is a generally going to be something written – like a contract or a law – that creates a right or entitlement to receive something of value. Examples of intangible property are stocks, patents, licenses, retirement annuities, and brand names, to name just a few.Insurance policies are intangible property.

An entitlement is not a gift (or “freebie”), although the word lately is being distorted to imply that it is. For example, if you have signed a lease and paid your rent, living in an apartment is not a gift from your landlord. You have become entitled to live thereby virtue of your written lease agreement. If you have graduated from dental school and have passed the licensing exams, you are entitled to your professional license – it is not a gift from the licensing agency.It has been said that:

“The automobile dealer has his franchise, the doctor and lawyer their professional licenses, the worker his union membership, contract, and pension rights, the executive his contract and stock options; all are devices to aid security and independence. Many of the most important of these entitlements now flow from government: subsidies to farmers and businessmen, routes for airlines and channels for television stations; long term contracts for defense, space, and education; social security pensions for individuals. Such sources of security, whether private or public, are no longer regarded as luxuries or gratuities; to the recipients they are essentials, fully deserved, and in no sense a form of charity.”

Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L. J. 1245, 1255 (1965).

To conclude, your Social Security disability insurance policy is constitutionally protected property, entitling you to benefits that have been earned by your payment of premiums during a lifetime of work. When you file a claim for disability, you are making a claim of entitlement from the Social Security Administration for payment on your disability insurance policy. You are asserting a property right.

Next we explore what is meant by due process of law.

Your claim for disability cannot be denied without according you constitutional due process of law.

No government employee has the power to take from or deny you your property in an arbitrary or capricious manner. We are a “nation of laws, not of men” as founding father John Adams once wrote. Due process is the term in the Constitution that describes this fundamental right.

Robert H. Jackson is one of the most notable figures in American History. He was Attorney General of the United States from 1940-1941, a Justice of the U.S. Supreme Court during World War II and after, and perhaps most famously the Chief Prosecutor for the United States at the Nuremburg trials of Nazi war criminals after World War II. Justice Jackson was a powerful proponent of due process of law. He once stated in a Supreme Court decision:

“Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires. [D]ue process . . . yields less to the times, varies less with conditions, and defers much less to legislative judgment. [I]t must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government. . . .

Procedural fairness and regularity are of the indispensable essence of liberty.”

The Supreme Court has also laid out what the essential elements of due process are. In the case of Goldberg v. Kelly, the Court listed your due process rights as including:

• A hearing before an impartial judicial officer

• The right to attend your hearing and present evidence

• The right to an attorney’s help

• A decision based solely on the evidence that is explained to you in a reasoned decision.

The Social Security Administration must accord you this fundamental fairness known as due process when it proposes to deny your claim for disability benefits. How that works is discussed in our next post.