wordsworth

John Harrison of the University of Virginia in his 1997 Virginia Law Review article Substantive Due Process and the Constitutional Text compares the text of the Due Process Clauses in the Fifth and Fourteenth Amendments to the decisions of the U.S. Supreme Court and several State supreme courts. His conclusion is that the text of the Due Process Clauses does not explain any of these decisions or the courts’ evolving theory of substantive due process; substantive due process flows from a source other than the text of the Fourteenth Amendment.

To define what substantive due process is, Harrison defines in brief what it is not – it is not either of two types of procedural due process. The first type of procedural due process requires that judges and executive officers "follow the rule of law" – any deprivation of life, liberty, or property must be "in accordance with established law." Procedural due process, per Harrison, also requires the "rule of law" be fair.  Harrison concedes this second type of procedural due process – fairness – is an attack on the substance or content of legislated procedure but distinguishes this (without immediate explanation) from substantive due process which attacks the substance or content of other types of legislation.

… I must end this post without completing it.

Ultimately, I disagree with Harrison’s premise that the Fourteenth Amendment is superfluous. Harrison concludes that the large body of constitutional common law the Supreme Court claims is grounded in the Fourteenth Amendment’s due process and equal protection clauses is better understood by reference to other fundamental elements of the Constitution.

I believe the Fourteenth Amendment’s use of the word "person" does something that the other fundamental elements of the Constitution do not – I believe the use of the word "person" removes from dispute that the restraints elsewhere in the Constitution – clearly applicable to conflicts between the States and the Union, and between the branches of the federal government – are also applicable to conflicts between a person and her government.

I sent Harrison an email (2/19/14) asking if the word "person" – a word he never included in his textual analysis – changed his conclusion. I haven’t heard from him (2/25).