Bench Memos

NRO’s home for judicial news and analysis.

Loose Ends


Much more can be said about Matt’s posts, but I presume that he will expand on his interpretation of the political question doctrine as blocking structural issues from judicial review (and we also have to eventually wrap this up, K-Lo hints to me). As should be apparent from the last post, this view finds no support in the text of the Constitution; and the Framers–both in Federalist 78 and the debates–did not so limit judicial review. Again, Matt’s restrictive position is neither properly originalist or textualist.

As for his statements about due process, suffice it to say that he takes my reference to due process grossly out of context. I did not suggest that due process forms the basis for judicial review—it merely provided a theoretical constitutional support for a statement made by Gerry and Robby. That said, the idea that due process could be found to require that a law used to prosecute someone actually must be a properly passed law is a pretty minimalist view, contrary to Matt’s shock and horror. It says nothing of an underlying right, but rather goes to the process by which someone is deprived of life, liberty or property (i.e., the process requires that only legitimate laws may be used—not laws which are “void”). By contrast, a claim sounding in substantive due process could, for example, appeal to the ether of that oxymoronic phrase to provide the basis for why the law was unconstitutional. Accordingly, Matt’s use of the term “substantive due process”—while an admirable attempt at derision–was nonetheless legally erroneous even as to the use of the term. But, to be clear as to my position, the Courts don’t need due process to have authority for judicial review: the Constitution grants them that power in “all Cases, in Law and Equity, arising under this Constitution.”


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