The Lost Due Process Doctrines

Abstract

In order to render manageable the doctrinal development of the Due Process Clause, the Supreme Court over the last fifty years has attempted to fit its decisions into one of two distinct categories: procedural requirements that the government must satisfy before depriving someone of life, liberty, or property, and substantive limitations on exactly what deprivations the government may accomplish. Unfortunately, neither the law nor life can be so easily classified. The Court has decided numerous cases that defy its recent attempts to divide Gaul into two parts, not three (or more). Several due process doctrines seem to have been isolated from the main body of law that the Court has developed. Some could be at risk of being eliminated by falling into that collection of precedents often described as no longer being "good law." But not all of them will suffer that fate, and the reasons why they will and should remain vibrant are relevant to the rationale for the other doctrines and help explain why they should not be set adrift.Part I of this article will describe the two-fold divide between procedural requirements and substantive limitations that has dominated the discussion of the Due Process Clause. Part II will consider a few categories of due process case law that the Court has not attempted to fit into one or the other of those categories. Part III will discuss the provenance of the Magna Carta, a thirteenth century charter of liberties that later gave birth to the Due Process Clauses in our Constitution. Part IV will wrap up by considering whether there is a home in the Constitution for the Court’s Lost Due Process Decisions. In particular, Part IV will ask whether Magna Carta provides that home and can serve as a base for the ongoing development of constitutional law.