Adversary Democratic Due Process

62 Pages Posted: 1 Aug 2022 Last revised: 27 Oct 2022

Date Written: July 29, 2022

Abstract

Legal minds have long quarreled over the true meaning of the Due Process Clauses of the Fifth and Fourteenth Amendment, but little consensus has emerged as to their scope and application. Despite the doctrinal significance and ubiquity of due process, troublingly little attention has been devoted to the underlying premises or “DNA” of this fundamental constitutional right. Consequently, litigants’ claims to adjudicatory procedures have been consistently undervalued on the myopic utilitarian scale of costs and benefits that has imposed a chokehold on current doctrine, and no viable alternative approach has emerged to take its place. This Article seeks to fill that intellectual void and provide a superior model of procedural due process, one that grounds it in the democratic theory inherent to American constitutionalism—what we call “liberal adversary democracy.” Liberal adversary democracy is an outgrowth of the Framers’ belief that, in the face of an increasingly divisive and diverse polity, defensively invoking conflict, mistrust of others, and fear of unchecked power is the best (if not the only) way to safeguard liberal values of individual development, growth, and dignity. Procedural due process, this Article will demonstrate, is a product of liberal adversary democracy, providing one of the most foundational defensive guarantees that both protects individual liberty and legitimizes democracy itself. To serve its democratic function, procedural due process must be imbued with the protective skepticism of liberal adversary democracy. This adversary democratic model of due process would revolutionize the presently under-protective due process jurisprudence of today and provide clear normative guidance for all future procedural due process inquiries.

Keywords: Due Process, Constitutional Law, Democratic Theory, Utilitarianism, Liberalism, Administrative Law, Originalism, Article III, Neutral Adjudication

JEL Classification: k10,k19, k30, k39

Suggested Citation

Redish, Martin H. and Hiltner, Victor, Adversary Democratic Due Process (July 29, 2022). 75 Fla. L. Rev. (Forthcoming), Northwestern Law & Econ Research Paper No. 22-11, Available at SSRN: https://ssrn.com/abstract=4176457 or http://dx.doi.org/10.2139/ssrn.4176457

Martin H. Redish (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Victor Hiltner

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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