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Structural, Not Substantive, Due Process

Publication Date: 
August 02, 2012
Jotwell: Constitutional Law
Charles Shanor

Professor Michael W. McConnell's article on due process and constitutional separation of powers is quoted by Charles Shanor of Jotwell: Constitutional Law in the following article.

Great scholarship in American constitutional law ranges from the conceptually original to the historically meticulous. The most cited articles of all time contain far more of the former than the latter. This year's scholarship contains a rare piece that is both conceptually groundbreaking and a deep historical dive. An article of interest to multiple audiences, Nathan Chapman and Michael McConnell's Due Process as Separation of Powers merits kudos from both conceptualists and historicists.

Chapman and McConnell note that due process, the "oldest phrase and the oldest idea in our Constitution," has, perversely, become "the most unrecognizable in modern interpretation," a phrase used to "subvert the separation of powers" by giving courts "a super-legislative power to change rather than enforce and interpret the law."


Here is the article’s core conclusion:

Legislative acts violated due process not because they were unreasonable or in violation of higher law, but because they exercised judicial power or abrogated common law procedural protections. … [T]he principle of due process extended to acts of the legislature in two narrow ways: statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees were subject to judicial review, and acts by the legislature that deprived specific individuals of rights or property were subject to similar challenge, either in the legislative forum itself or in the course of subsequent judicial consideration. (P. 1676.)