Nathan Chapman & Michael McConnell: Due Process as Separation of Powers

Since I have been posting on substantive due process, I thought readers might be interested in this new paper on the subject.  The paper is likely to receive a great deal of interest.

The paper, written by Nathan S. Chapman (Stanford Constitutional Law Center) and Michael McConnell (Stanford Law School), is titled Due Process as Separation of Powers (forthcoming Yale Law Journal).  It is available on SSRN.  Here is the abstract:

From its conceptual origin in Magna Charta, due process of law has required that government can only deprive persons of rights pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was the court’s role to do so pursuant to established and general law. This principle was applied against insufficiently general and prospective legislative acts under a variety of state and federal constitutional provisions through the antebellum era. Contrary to the claims of some scholars, however, there was virtually no precedent before the Fourteenth Amendment for invalidating laws that restricted liberty or the use of property. Contemporary resorts to originalism to support modern due process doctrines are therefore misplaced. Understanding due process as a particular instantiation of separation of powers does, however, shed new light on a number of key 20th century cases which have not been fully analyzed under the requirements of due process of law.

This article covers much the same ground as Ryan Williams’s paper on substantive due process about which I have previously blogged, and appears to be something of a response to it.  I plan to post on the paper when I have finished it.  Mr. Williams’s paper tenatively moved me towards a substantive due process position.  I am interested to see what Chapman and McConnell have to say.