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Due Process as Separation of Powers

2012; The Yale Law Journal Company; Volume: 121; Issue: 7 Linguagem: Inglês

1939-8611

Nathan S. Chapman, Michael W. McConnell,

Legal Systems and Judicial Processes

From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was a court’s role to do so pursuant to established and general law. This principle was applied against insufficiently general and prospective legislative acts under a variety of state and federal constitutional provisions through the antebellum era. Contrary to the claims of some scholars, however, there was virtually no precedent before the Fourteenth Amendment for invalidating laws that restricted liberty or the use of property. Contemporary resorts to originalism to support modern substantive due process doctrines are therefore misplaced. Understanding due process as a particular instantiation of separation of powers does, however, shed new light on a number of key twentieth-century cases which have not been fully analyzed under the requirements of due process of law. authors. Nathan S. Chapman, Executive Director, Stanford Constitutional Law Center; Michael W. McConnell, Richard and Frances Mallery Professor of Law, Stanford Law School. Thank you to Samuel Bray, William Baude, David Bernstein, Josh Chafetz, David Engstrom, Jack Goldsmith, Robert Gordon, Philip Hamburger, Paul Harold (for research assistance), John Harrison, Richard Helmholz, Daniel Hulsebosch, Larry Kramer, Ed Larson, Kurt Lash, Earl Maltz, Jeff Powell, Michael Ramsey, Nicholas Quinn Rosenkranz, Stephen Sachs, Matthew Shapiro and the editors of The Yale Law Journal, the Columbia Law School Legal Theory Workshop, and the Stanford Law School Faculty Workshop. 1672.CHAPMANMCCONNELL.1807.DOC 4/10/2012 12:16:28 PM due process as separation of powers