Due Process: A Unified Understanding
in The Cambridge Companion to the Constitution (CUP Forthcoming)
43 Pages Posted: 23 Aug 2017 Last revised: 30 Aug 2017
Date Written: August 18, 2017
This chapter, contributed to the forthcoming Cambridge Companion to the Constitution, explicates the role of the due process clauses in U.S. constitutional law. The concept of due process is traced from English origins through recent Supreme Court Cases, including Obergefell v. Hodges, Johnson v. United States, and Ohio v. Clark. Throughout American history, jurists have agreed that due process consistently forbids deprivations by government without ex ante legal authorization and fair procedures for applying the justifying law. They also have agreed that deprivations, legality and fairness are not whatever legislation says them to be. Beyond that, there has been no consensus about the meaning of these core concepts. Indeed, partisans on opposing sides of many great American controversies have invoked due process. What these partisans have disputed, however, is the nature of life, liberty, property, legality or fairness, not the nature of due process. Analytical focus on the constituent concepts can help us better understand these disputes.
JEL Classification: A00, A10, K10
Suggested Citation: Suggested Citation