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10 Harv. C.R.-C.L. L. Rev. 269 (1975)
Structural Due Process

handle is hein.journals/hcrcl10 and id is 277 raw text is: Harvard Civil Rights-Civil Liberties Law Review Volume 10, Number 2 Spring, 1975 STRUCTURAL DUE PROCESS Laurence H. Tribe* The constitutional command that government deprive no person of life, liberty, or property without due process of law is commonly understood to encompass two kinds of limitations upon public choice. The first sort of limitation, sometimes quite modest in scope but in some historical periods quite sweeping, imposes constraints upon the policies government may seek to implement. The second sort of limitation, again varying over time in its force, imposes constraints upon the methods by which governmentally chosen policies may be enforced to the detriment of particular individuals. The central purpose of this Article is to suggest a third category of constitutional limitation-a category that focuses neither on the substantive content of policies already chosen nor on the procedural devices selected for enforcing those policies but rather on the structures through which policies are both formed and applied, and formed in the very process of being applied. I will attempt to show how a concern with such structures-a concern expressed through what I will call structural due process-is already implicit in some of the constitutional doctrines that we ordinarily treat either as aspects of substantive due process or as parts of procedural due process. By bringing these structural concerns to the surface in their own right, I hope to shed more light on their premises and implications than seems possible so long as our perceptions about them must be filtered through the lenses of substance and procedure. Finally, I hope to begin exploring the notions of governmental legitimacy and of institutional competence that seem to me entailed by the structural due process ideas latent in current doctrinal developments. But all of this is surely too abstract. I think it would be helpful, *Professor of Law, Harvard Law School. A.B. Harvard, 1962; J.D., 1966. Part of the analysis developed here has its origins in a study of childhood supported by the Childhood and Government Project of the University of California, Berkeley. Related aspects of this study are scheduled to appear shortly, Tribe, Childhood, Suspect Classifications, and Conclusive Presumptions: Three Linked Riddles, 39 LAW & CONTEMP. PROB. (forthcoming, 1975).

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