Bench Memos

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Re: Addendum


Like Roger Pilon, I will keep this final rejoinder short, since by now Memos readers have had our respective positions aired out enough to choose between them for themselves.  I have just two points to make.

First, it is Pilon who misreads Webster.  When I said that it would satisfy Webster’s notion of due process if “legislatures . . . pass laws that honored the procedural requirements of due process,” I didn’t intend for it to be forgotten that the first requirement is that it must be a law, not a decree.  When Webster refers to “acts directly transferring one man’s estate to another,” he is describing a decree, not a law.  Pilon seems to think that this principle is violated every day by the modern administrative state–with its transfer payments, I suppose.  Think what you will of such laws, they are still laws, and no violation of due process.  They are prospective, generally applicable, and administered by familiar procedural mechanisms; they are not retrospective, particularly confiscatory, and accomplished merely by the enactment itself.

Second, Pilon claims that “the tragedy of so much contemporary conservative constitutionalism is that it has taken on the mantle of legal positivism, abandoning its and the nation’s roots in the theory of natural rights, which alone gives the Constitution its legitimacy.”  This would be an interesting charge if it had anything to do with the present argument.  It does not.  It does not follow from the fact that one regards the due process clause as procedural in character, and the Ninth Amendment as unenforceable by judges, that one is a legal positivist, or forgetful of the theory of natural rights.  Easily half of my first book, a decade ago, was devoted to showing that the natural rights theory that undergirds American constitutionalism is actually incompatible with the conception of the judicial function that Roger Pilon evidently embraces.


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