Due Process as Separation of Powers

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ESSAY CONTENTS

INTRODUCTION

  I. THE FIFTH AMENDMENT DUE PROCESS CLAUSE
     A. English Origins of Due Process of Law: Magna Charta and Coke
     B. Pre-Revolutionary English Disputes About Parliament's Power
        1. The Expulsion and Disqualification of John Wilkes
        2. The East India Company Debates
     C. Revolutionary Arguments That Parliament Violated the Law of the
        Land
     D. Early State Experiments with Legislative Supremacy
        1. Isaac Austin's Case
        2. Holmes v. Walton
        3. Trevett v. Weeden
        4. Bayard v. Singleton
        5. Alexander Hamilton's Understanding of Due Process of Law
     E. The Constitution
        1. General and Specific Provisions
        2. The Due Process Clause

  II. THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE
     A. Due Process as a Limit on the Legislature's Power of
        Adjudication
        1. Legal Principles
        2. Illustrative cases
           a. The Randall Affair
           b. Calder v. Bull
           c. Dash v. Van Kleeck
           d. Society for the Propagation of the Gospel v. Wheeler
           e. Hoke v. Henderson
           f. Bloomer v. McQuewan
        3. Categories of Impermissible Quasi-Judicial Acts
           a. An Act That Takes from A and Gives to B
           b. An Act That Takes Land for Public Use Without
              Compensation
           c. An Act That Revises a Charter or Revokes a Land Grant
           d. Laws That Reduce Procedural Protections for a Small Class
              of Citizens
           e. Wynehamer v. People
           f. Slavery and the Dred Scott Case
    B. Due Process as a Limit on the Legislature's Power To Abrogate
       Common Law Judicial Procedures
    C. Legislative History of the Fourteenth Amendment

  III. APPLICATIONS
    A. Defining "Liberty" and "Property"
    B. Due Process Against the Executive
       1. The Steel Seizure Case
       2. Excessive Delegations of Power to the Executive
       3. "Substantive Due Process" Against the Executive
       4. Detention Without Trial: Korematsu and Hamdi
    C. Substantive Due Process Against Legislatures
       1. Lochner v. New York
       2. Griswold v. Connecticut
       3. Roe v. Wade
       4. Planned Parenthood v. Casey and Lawrence v. Texas
       5. Rational Basis Review
    D. Incorporation of the Bill of Rights
    E. Legislative Acts That Raise Due Process Concerns
       1. Northern Pipeline Article III Cases
       2. United States v. Lovett
       3. Statutes That Are Void for Vagueness

CONCLUSION

INTRODUCTION

Scholars are showing renewed interest in the original understanding of the Due Process Clauses, and especially in whether that understanding supports the Supreme Court's modern substantive due process jurisprudence. Not long ago, most scholars accepted John Hart Ely's clever dismissal of the idea of substantive due process as an "oxymoron," on the order of "green pastel redness" (1)--with those of an originalist bent concluding that substantive due process is illegitimate (2) and those of a substantive due process bent concluding that originalism is wrongheaded. (3) Now, with originalist approaches to constitutional interpretation gaining greater adherence, even among progressives, (4) we are seeing more serious attempts to discern the "original understanding" of "due process of law."

Scholars who have considered the evidence generally fall into two camps. Some argue that "due process" meant nothing more than judicial procedure. (5) It therefore applied to the courts and, perhaps, to the executive with respect to prosecution and the enforcement of court judgments. Under this reading, due process did not apply to the legislature. Others contend that "due process of law" entailed judicial procedure and natural law norms such as reasonableness, justice, or fairness. (6) Due process thus applied to legislative acts that failed to live up to those norms. …