Due Process and Separation of Powers: The Effort to Make the Due Process Clauses Nonjusticiable
![handle is hein.journals/tlr60 and id is 897 raw text is: Due Process and Separation of Powers:
The Effort to Make the Due Process
Clauses Nonjusticiable
Douglas Laycock*
The 1970s were a time of turmoil in the law of procedural due
process. That ferment has produced recurring suggestions that legisla-
tures may authoritatively determine the effective procedural scope of
the due process clauses. These suggestions have come from disparate
sources, on and off the Court, and have varied doctrinal roots, but each
would effectively make the due process clauses nonjusticiable. Each
finds a demonstrable constitutional commitment of the issue [the
meaning of procedural due process] to a coordinate political depart-
ment [the legislatures].'
The clauses provide that no person shall be deprived of life, lib-
erty, or property, without due process of law.2 One attack on judicial
enforcement of the due process clauses argues that legislatures may de-
fme life, liberty, or property in procedural terms, so that whenever
the government complies with the legislatively prescribed procedures,
there is no deprivation of a protected interest. Another, with roots in
law and economics, argues that even if there is a deprivation, legisla-
tures may determine how much process is due. A third is based on
bad history, and a fourth on irrelevant precedent. This Article exam-
ines and rejects each of these suggestions.
I. The Appeal to Text: When Is Process Due?
The best known attack on judicial enforcement of the due process
clauses relies on the meaning of life, liberty, or property. Much re-
cent debate has focused on this phrase and the roles of courts and legis-
latures in defining it.3 This Article addresses only a small part of that
* Professor of Law, The University of Texas. B.A. 1970, Michigan State University; J.D.
1973, The University of Chicago. Harold Bruff, Frank Easterbrook, Sanford Levinson, Thomas
McGarity, L. A. Powe, and Mark Yudof made helpful comments on earlier drafts. Jack Hohen-
garten provided research assistance.
1. Baker v. Carr, 369 U.S. 186, 217 (1962).
2. U.S. CONST., amends. V & XIV.
3. See Easterbrook, Due Process and Parole Decision Making, in PAROLE IN THE 1980s 77
(B. Borsage ed. 1981) [hereinafter cited as Easterbrook]; Monaghan, Of Liberty and Property,
62 CORNELL L. REV. 405 (1977); Tushnet, The Newer Property: Suggestionfor the Revival of Sub-
875](ViewImageLocal?handle=hein.journals/tlr60&div=47&collection=&method=preview&ext=.png&size=3)
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Due Process and Separation of Powers: The Effort to Make the Due Process Clauses Nonjusticiable
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