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Due Process: A Unified Understanding

in The Cambridge Companion to the Constitution (CUP Forthcoming)

San Diego Legal Studies Paper No. 17-299

43 Pages Posted: 23 Aug 2017 Last revised: 30 Aug 2017

Donald A. Dripps

University of San Diego School of Law

Date Written: August 18, 2017

Abstract

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

Dripps, Donald A., Due Process: A Unified Understanding (August 18, 2017). in The Cambridge Companion to the Constitution (CUP Forthcoming); San Diego Legal Studies Paper No. 17-299. Available at SSRN: https://ssrn.com/abstract=3021947

Donald Dripps (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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