Valid Rule Due Process Challenges: Bond v. United States and Erie’s Constitutional Source

36 Pages Posted: 9 Mar 2012 Last revised: 25 Feb 2013

See all articles by Kermit Roosevelt

Kermit Roosevelt

University of Pennsylvania Law School

Date Written: February 2013

Abstract

This article begins by asking what constitutional provision is violated by the enforcement of law without a lawmaker. Taking a positivist view — i.e., that law does not exist without a lawmaker — it concludes that the problem of law without a lawmaker collapses into the problem of coercion without law. Coercion without law violates the Due Process Clause in an obvious way: it is deprivation of something “without...law.” The article then explores the existence of this form of substantive due process in American law, arguing that we find it in three somewhat surprising places: Lochner-era substantive due process; modern federalism cases like Morrison, Lopez, and Bond; and Erie itself. Erie’s constitutional source, it concludes, is the Due Process Clause.

Keywords: Constitutional law, coercion, substantive due process of law, Lochner, federalism, Erie v. Tompkins, federal common law, overbreadth, third-party standing, states’ rights

Suggested Citation

Roosevelt, Kermit, Valid Rule Due Process Challenges: Bond v. United States and Erie’s Constitutional Source (February 2013). William & Mary Law Review, Vol. 54, pp.. 987, 2013; U of Penn Law School, Public Law Research Paper No. 12-18. Available at SSRN: https://ssrn.com/abstract=2018497

Kermit Roosevelt (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215.746.8775 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
154
Abstract Views
1,358
rank
191,409
PlumX Metrics