Academic journal article
By Roosevelt, Kermit,, III
William and Mary Law Review , Vol. 54, No. 3
TABLE OF CONTENTS INTRODUCTION I. ALLGEYER AND LOCHNER A. Allgeyer B. Lochner II. ERIE III. LOPEZ AND MORRISON IV. OVERBREADTH, THIRD-PARTY STANDING, AND BOND A. Overbreadth and Third-Party Standing B. Bond v. United States 1. Regulated Individuals and Total or Partial and Relevant Invalidity 2. Regulated Individuals and Partial and Irrelevant Invalidity 3. State-Regulated Individuals and Commandeering Claims 4. Unregulated Individuals CONCLUSION
What is wrong about law without a lawmaker? One response, and I think a fair one, is that the main difficulty of law without a lawmaker is that it does not exist. But my purpose in this Article is not to argue for that view. (1) I will assume, as our domestic legal system generally does, that a law is something that has legal effect, and it has that effect because it was created or adopted by an entity with the power to create rights or impose obligations. (2) "Law" that does not have the backing of some sovereign is not law, at ]east not domestically. (3) The questions I want to pursue are the following: If we accept this view, which we can loose]y terra positivist, what problem would law without a lawmaker pose? Would the Constitution restrain courts or other government actors from purporting to enforce such "law"?
The question might seem a surprising one to ask. Why should the Constitution protect us from something that does not exist? If it shields us from law without a lawmaker, why not Santa Claus and zombies as well? (4) But it turns out that this actually is an issue that the Constitution addresses and about which it gives a relatively clear answer. If there is no law without a lawmaker--if, as Holmes said, "law in the sense of which courts speak of it today does not exist without some definite authority behind it"--then its purported enforcement is coercion without law. (5) It is the government using its power to compel an individual to do something--to take an action, or refrain from acting, or possibly to pay money if he is the target of a suit for damages--in the absence of any legal warrant for the compulsion. That amounts to a deprivation of liberty or property without law. With no law, there cannot be due process of law, so what we have is a relatively clear violation of the Due Process Clause. (6) The issue is not a lack of procedure, so the violation is of what we now tend to call substantive due process. Thus, the substantive aspect of the Due Process Clause protects us from government coercion that is not backed by a valid law. I will call this a "valid rule" due process argument. (7)
This model of substantive due process as restraining government action unauthorized by law might seem odd. It is not the modern doctrinal formulation, which tends to work instead in terms of fundamental rights that trump otherwise valid laws. (8) But my aim in this Article is to show that this form of argument is much more common than supposed. The due process prohibition of compulsion without law is the invisible thread that connects doctrinal areas often thought of as quite distinct: Erie, Lochner-era substantive due process, overbreadth, and modern federalism decisions such as United States v. Morrison, (9) United States v. Lopez, (10) and Bond v. United States. (11) In what follows, I will explain how those different doctrinal areas conform to this model, and what their connection means.
I. Allgeyer and Lochner
Nowadays, it is conventional to call cases such as Allgeyer v. Louisiana (12) and Lochner v. New York (13) substantive due process decisions. (14) So claiming that they should be understood as the product of a principle I have identified as substantive due process is neither novel nor controversial. What is slightly more controversial is my description of that principle as a restraint on government action unauthorized by law. Modern substantive due process cases are concerned with the question of whether the interest asserted by an individual qualifies as a fundamental right. …