The Corner

“Informing” Due Process

Andy – I’m afraid you’re still not convincing me. The Eighth Amendment — a substantive protection — should “inform” the standards for due process? How is this anything other than substantive due process through the back door? Indeed, I’m tempted to ask how your interpretation of the Schiavo legislation is not itself premised upon a notion of substantive due process. It seems to me that the claim that Florida courts violated her procedural federal due process rights — the one’s the Constitution actually protects — is fairly weak.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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