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Donald Dripps: Due Process: A Unified Understanding
Michael Ramsey

Donald A. Dripps (University of San Diego School of Law) has posted Due Process: A Unified Understanding (The Cambridge Companion to the Constitution, (Cambridge University Press, Forthcoming) on SSRN.  Here is the abstract:

This chapter, contributed to the forthcoming Cambridge Companion to the Constitution, explicates the role of the due process clauses in U.S. constitutional law. The concept of due process is traced from English origins through recent Supreme Court Cases, including Obergefell v. Hodges, Johnson v. United States, and Ohio v. Clark. Throughout American history, jurists have agreed that due process consistently forbids deprivations by government without ex ante legal authorization and fair procedures for applying the justifying law. They also have agreed that deprivations, legality and fairness are not whatever legislation says them to be. Beyond that, there has been no consensus about the meaning of these core concepts. Indeed, partisans on opposing sides of many great American controversies have invoked due process. What these partisans have disputed, however, is the nature of life, liberty, property, legality or fairness, not the nature of due process. Analytical focus on the constituent concepts can help us better understand these disputes.

And from the introduction:

A recent term of the U. S. Supreme Court provides a characteristic assortment of due process decisions. The Court relied on the denial of due process in one case to invalidate state statutes that precluded same-sex marriage; in another, to hold void-for-vagueness a clause in the federal Armed Career Criminal Act. In still another, the justices ruled that that the Sixth Amendment’s confrontation clause did not bar the use as evidence of a hearsay declaration from a child too young to be a competent witness in court. Apart from the fact that due process figured into each decision, the three seem utterly disparate. How is same-sex marriage connected to whether a federal criminal statute is clear enough to count as law or to a defense attorney’s inability to crossexamine a child witness? In this essay, I will explain that these instances appear as unlike each other as they do because each illustrates a distinctive component of the due process guarantee.

The distinction between “procedural” and “substantive” due process, which may be familiar from other commentaries, forms only a subset within the first component of the definition offered here. That is, every due process claim begins with a deprivation, specified in the Fifth and Fourteenth Amendments to be a deprivation of “life, liberty or property.” Second, to constitute due process, the deprivation must have been authorized prospectively, by valid law. And third, due process requires that the deprivation be accomplished along with a fair hearing about whether the law, though valid, also applies to the case at hand. At the risk of asserting a negative, I know of no American judge who does not accept this basic description of due process.

Typically, the plaintiff claiming a constitutional violation will insist that there has been a deprivation, but components two and three have not been complied with. The government, on the other hand, will deny the existence of a deprivation altogether, or, if it admits one occurred, it will argue that the second two components were present. The constitutional text, coupled with the practice of judicial review, means that to the extent that ordinary statutes were the instruments of denial they may be declared void. The canonical examples are a statute purporting to transfer the estate of one private person to another and a statute assigning one party in a lawsuit to be judge in her own case. In short, "life, liberty, and property," legality, and procedural fairness are not whatever it is that the legislature decrees.

The discussion below proceeds in four stages. First, we consider the origins and analytical structure of the Fifth Amendment due process clause. Second, we trace the evolution of its constituent concepts in antebellum America. Third, we consider how the Fourteenth Amendment altered the legal and institutional ecology of constitutional interpretation in the years between the Civil War and the Second World War. Fourth, we explicate how the Supreme Court, in the second half of the twentieth century, invoked due process to expand, and to unify, the scope of individual rights against both federal and state abridgement.

We close by returning to the cases referred to at the outset, which we will identify as Obergefell, Johnson and Clark. At issue in Obergefell was the nature of “liberty.” The sole issue in Johnson was the nature of valid "law.” In Clark the issue concerned the meaning of fair "process.” Each decision may one day be reversed; there were dissents in Obergefell. Both Johnson and Clark reversed the decision immediately below. Judicial error, it must be emphasized, differs categorically from judicial usurpation. The courts have always denied that liberty, property, legality and fairness mean whatever legislatures say they mean. If that premise is sound, what divides justices (and their critics) is precisely how to formulate such capacious concepts as due process, not whether to do so is the courts’ constitutional duty.