Substantive Due Process News

(1) Discussion of SDP continues over at Cato Unbound.   Too many interesting posts there to pick out one, so just start from Tim Sandefur’s lead essay and keep reading.

(2) Professor Michael McConnell and Nathan Chapman have posted an article on SSRN, Due Process as Separation of Powers.  The article cautions against “resorts to originalism to support modern due process doctrines,” finding that modern due process doctrines bear little similarity to the scope of the requirement of “due process of law” when the Fourteenth Amendment was enacted. On other hand, and contrary to standard originalist critiques emanating of SDP and its antecedents going back to Edward S. Corwin in the 1910s, the authors acknowledge that “due process of law” was understood to protect a (in their view very limited) category of substantive rights, in particular vested property rights.

I don’t agree with everything in this paper–in particular, I think the authors give short shrift to the influence of abolitionist constitutional thought.  The authors correctly note that before the Civil War, the (expansive, rights-oriented) abolitionist understanding of due process of law was not “adopted by more than a fringe,” but they fail to seriously grapple with the extent to which the Radical Republicans who drafted the Fourteenth Amendment after the Civil War were influenced by abolitionist thought. (I’m not sure how great the influence was, but it can’t be dismissed by reference to the state of constitutional law in 1860; the abolitionists were, after all, among the primary ideological victors of the war).

In any event, it’s a very valuable contribution to the debate over the meaning of the Due Process Clause, both in 1868 and today.

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