Bench Memos

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A Due Process Revolution?


Robert concludes his second Wednesday posting with the downright astonishing argument that all (or is it only nearly all?) matters of the constitutionality of legislation are in principle adjudicable by our courts–ultimately by the Supreme Court–thanks to the due process clause of the Fifth (and Fourteenth?) amendment. Perhaps Robert or someone else has argued this in a law review somewhere, but I confess it is altogether new to me.

And altogether unpersuasive, I’m afraid. Begin with the fact that conventionally, arguments about the basis and scope of judicial review focus on the original Constitution, before any amendments were added. I am hardly one for being conventional for convention’s sake, but here there is something inherently sensible in it, since the upshot of Robert’s argument seems to be that judicial review would have one of its principal legs kicked out from under it, had there never been a Fifth amendment. (What then were those Federalists and anti-Federalists arguing about when they discussed the judicial power under the original text?) Or is he arguing that the principles of the due process clause are somehow present even in the unamended Constitution, lurking in its penumbras?

All right, let that go. But is Robert saying that every over-ambitious use of the commerce power violates the commerce clause and the due process clause; that every over-extension of implied powers violates the necessary and proper clause and the due process clause; that every piece of pork-barrel spending that can be plausibly challenged under the “general welfare” clause would be subject to challenge as a due process violation as well?

Maybe Robert means his argument to cover only federal criminal statutes. He says the due process clause protects “the right not to be prosecuted under laws improperly passed–laws which are not law at all–in this case, because the legislature exceeded its authority.”

He calls this a “narrow understanding” of due process, but I can’t see what it has to do with that principle at all, unless one embraces the most capacious version of substantive due process I have ever encountered. For Robert’s argument invites courts to take up every conceivable instance of the question whether a law is or is not “law at all.” And I have never seen any court in our history adopt that large a view of its responsibilities to see that due process is done.

I anticipate that Robert will remind me that John Marshall said, in Marbury, that “It is emphatically the province and duty of the Judicial Department to say what the law is.” But this is one of the most frequently torn-from-context of Marshall’s many quotable lines. And in the same case he also said, “Questions, in their nature political . . . can never be made [i.e., taken up judicially] in this court.”

It is only a slight exaggeration to say that all the difference between my view and Robert’s turns on which of us is correct in understanding the relation of these lines from a case decided 202 years ago.


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