However, what is not always fully understood is the constitutional basis of these rights, or the exact list of due process rights as they have evolved over time through judicial interpretation. In The Arc of Due Process in American Constitutional Law, Sullivan and Massaro describe the intricate history of what are currently considered due process rights, and maintain that modern constitutional theory and practice must adhere to it. The authors focus on the origins and contemporary uses of due process principles in American constitutional law, while offering an overarching description of the factors or normative concepts that allow courts to invalidate a government action on the grounds of due process.
They also analyze judicial interpretations and expressions as a key manner and perhaps the most powerful source of how due process has taken form in the United States. Best selling etextooks. Principles and Practice of Marketing.
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Free etextbooks with your Kortext account. Principles of Macroeconomics. Most popular free etextbooks. Frankenstein; Or, The Modern Prometheus. Most popular etextbook categories. Earth Sciences, Geography, Environment, Planning. In many states, the role initially intended for Damagings Clauses was filled by tort claims that offered an alternative mechanism for aggrieved property owners to seek compensation. But Brady argues that neither tort claims nor regulatory takings doctrine offers an adequate substitute for effective Damages Clauses.
This article should be seen as part of a growing recognition among legal scholars that we should pay more attention to state constitutional law. Even in age where the federal government controls more and more areas of public policy, state constitutions still play a major role in constraining abuses of government power. The article also makes a good case for why courts should interpret Damagings Clauses more broadly, in the future, so as to impose tighter constraints on state and local officials.
As Brady explains, there is a great deal of historical evidence indicating that the original meaning of these clauses provides much broader protection for property owners than courts have been willing to enforce. There has now been a good deal of scholarship including some of my own work on the state-level reaction against Kelo , and state public use rules generally, and the ways in which they often deal from the extremely lax approach adopted by the US Supreme Court in interpreting the Fifth Amendment. Fortunately, younger scholars such as Molly Brady and Gerald Dickinson are now beginning to fill that gap.
This is particularly important in an era where new infrastructure projects, regulations, and efforts to deal with natural disasters seem likely to generate more cases where state and local governments damage property in ways that fall short of occupation or invasion, and might not be ruled compensable under conventional takings clauses. This article is not the last word on Damagings Clauses. As the author recognizes, she does not provide a clear standard for expanding the use of these clauses in the future, though she makes a good case that the current highly restrictive approach adopted by most state courts is defective.
There is also more work to be done in explaining how and why these clauses were rendered largely toothless over time. But the piece is a major step forward in our understanding of this important and unduly neglected episode in the history of legal battles over property rights. If you have any interest in takings law, property rights, constitutional reform movements, or state constitutional law generally, you should check it out!
Parts of this post have been adapted from a blog post at the Volokh Conspiracy law and politics blog, hosted by Reason.
Jul 8, Franita Tolson Add a Comment. Franita Tolson. In Passive Avoidance, Professor Anita Krishnakumar argues that the Roberts Court has retreated in recent years from the aggressive use of the constitutional avoidance canon that dominated much of its early jurisprudence. This Article is another tour de force in a very impressive body of work. In a number of cases, the Court construed statutory language very broadly—and sometimes implausibly—to avoid serious constitutional questions raised by the statute. Famously, the Court relied on the constitutional avoidance canon in National Federation of Independent Business v.
Sebelius , by construing the individual mandate in the Affordable Care Act as a tax in order to avoid the constitutional issues posed by treating it as an exercise of the commerce power. Holder , broadly interpreting the bail out provisions of the Voting Rights Act of to avoid constitutional issues. The turn to these alternative doctrines has been mostly beneficial.
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They avoid many of the criticisms that have plagued the constitutional avoidance canon, the most pointed of which accuse the Court of using the canon to issue judicial advisory opinions by opining about, but failing to resolve, the constitutionality of the statute being challenged. Similarly, focusing on the events that motivated the passage of the statute as a reason for embracing or eschewing a particular interpretation, as the Court does with the mischief rule, keeps the statute in line with its original purposes, and thus avoids accusations that the Court is seeking to enlarge its own power by rewriting the statute.
Like much of her work, this Article tells an important story in judicial decision-making. It also fits with an emerging literature that has sought to explain the stealthy ways in which the Court and individual justices resolve cases beyond issuing opinions. In NAMUDNO , for example, the Court intimated at length that section 5 of the Voting Rights Act of was unconstitutional and that avoidance of the constitutional question would give Congress an opportunity to fix the statute.
Yet when the Court invalidated the coverage formula of section 4 b of the Act four years later in Shelby County v. Holder , the Court made it difficult to envision that any type of remedy would be appropriate. Much of its opinion was based on a post-racialism that suggested that the Act was outdated because of its federalism costs.
Thus, the lack of transparency and inconsistent use of the constitutional avoidance canon suggests that the switch to other, less intrusive doctrines should be a welcome one, despite the risk that these alternative doctrines will be used in a stealthy way. By highlighting the rise of these stealth canons, Professor Krishnakumar importantly and critically highlights the interpretive tools to which litigants should give more attention for this next era of judicial decision-making.
Jun 13, Katie Eyer Add a Comment. Katie Eyer. Federal Indian law might seem an unlikely paradigm around which to center our understanding of constitutional law. But as Maggie Blackhawk lays out in her excellent new article, Federal Indian Law as Paradigm Within Public Law , the history of Native Nations and indigenous peoples in the United States, and their treatment as constitutional subjects, is equally central to our constitutional history as slavery and Jim Crow. And yet it is far less common for Native history to play a role in our canonical stories and in our understandings of what constitutional law does, or ought to, provide.
Although the cases and practices she describes in many instances have deeply informed our modern constitutional understandings—of the treaty power, the war power, the plenary power doctrine, and others—most will be unfamiliar to those outside of the federal Indian law field. It is through these stories that we convey and discuss questions of constitutional theory and that we build our constitutional canon and anti-canon.
Placing Native history at the center of the canon, alongside slavery and Jim Crow, leads to different results.
Ferguson as constitutional failures. Though Blackhawk describes a variety of contexts in which this re-centering could be important, she relies on equality law as her central example, and it is generative. As she points out, our canonical vision of minority protection, framed around the paradigm case of slavery and Jim Crow, has long revolved around federal protection and rights, not minority power—and inclusion and integration, not independence.here
Due Process of Law in the US Constitution
As Blackhawk points out, the inadequacy and contingency of this centralized power-and-rights perspective becomes immediately apparent once Native peoples and Native Nations are placed at the center of our thinking. The violence and efforts at subordination targeted at Native Nations have been predominantly though certainly not exclusively effectuated at the hands of federal actors, acting under broadly construed federal powers. Rather than a tool of empowerment, rights, to the extent they have been offered at all, have largely been used to weaken and undermine Native self-governance and self-determination.
In contrast, Blackhawk points to power as the central organizing principle of harm mitigation that emerges from a constitutional paradigm centered on Native Nations. Power, and the autonomy and self-determination that come with it, are values that, as Blackhawk points out, are largely absent from our modern conception of constitutional equality law. Though some, including a number of scholars who Blackhawk discusses, have urged their greater inclusion. And yet they are deeply important to many minority communities. From people of color, to people with disabilities, the working poor, and more, power and autonomy should be a key component of our thinking about how the Constitution ought to address issues of minority subordination and oppression.
Among the areas that could offer rich possibilities for future work is an elaboration of how her ideas relate to the paradigm case she seeks to supplement: the experience of African Americans in the United States. For although power and autonomy have not been the constitutional principles through which the harms of slavery and Jim Crow have been mitigated, they have long played a role in Black political thought and Black political movements. Indeed, even today political power and community control are among the central demands of the Movement for Black Lives. Yet modern examples of real power and autonomy being devolved to black or other minority communities are comparatively few, and often have been met with resistance and backlash.
Though she persuasively makes the case that a Native woman, whose community is told it must adhere to federal sex discrimination rights, has been in a meaningful and harmful way divested of power, she does not address how this might play out across other, potentially even more difficult, contexts. In an era in which many conservative Christians feel that they represent a minority perspective, and in which various Christian denominations are riven by internecine battles over doctrine and direction, this issue is surely not merely theoretical.
Rather, it highlights the importance of integrating the paradigm on which Blackhawk would have us retrain our attention with the rights-protective paradigm that has emerged from the paradigm of African American exclusion. As Blackhawk points out, the path to constitutional harm-mitigation i.
Rather, it has been a project in which legislative, and sometimes executive, action has played a vital role—for better or for worse. To the extent we are going to attempt to operationalize constitutional values of power and autonomy for other minority communities, this insight is surely of key importance.
Not only are legislative and executive actors critical, by virtue of their ability to fundamentally obstruct or promote such a project, they are also arguably better equipped to consider the questions of how to address the inevitable conflicts between power and rights, or between different powers or different rights. Constitution contained more than one compromise and more than one original sin at the Founding.
As Blackhawk argues, colonialism, and the subordination of Native Nations and Native peoples, was central to our national project of constitution-making. As such, this history surely deserves a more prominent place in our constitutional canon—and anti-canon. And centering that paradigm, alongside slavery and Jim Crow, can offer us new constitutional perspectives—on rights and power, federalism and sovereignty, and ultimately how our past constitutional mistakes ought to inform our constitutional present.
May 29, Pat Gudridge Add a Comment.
Due Process of Law in the US Constitution
Pat Gudridge. Without much fuss, writing with easy, accomplished clarity, Nikolas Bowie puts forward two striking ideas interacting dramatically in his article The Government-Could-Not-Work-Doctrine. The first is advertised in the title of his article: The proposition that government is supposed to work is constitutional, Bowie stresses. It is itself a notion properly treated as of primary relevance in processes of bringing to bear other constitutional considerations.
In particular, he asserts, government efforts ought ordinarily to win our respect if they declare their general applicability to be integral to their aims. Vaccination programs, we may especially appreciate these days, count as paradigm illustrations. Claims to exceptions, however deeply felt and honorably motivated, should not prevail absent directly pertinent, emphatically couched constitutional directives. Individuals who resist general dictates should consider tactics founded in philosophies of civil disobedience. We are made witnesses to a distinctly striated chronology.
Until , Professor Bowie reports, the Supreme Court respected government efforts to treat regulatory agendas as generally applicable. Barnette , however, the idea of exceptions to duties writ large quite often figured as high-church constitutional law too. Sometime around , Bowie sees a second shift, a largely returned resolution, a now bridged gap. Exceptions are once more exceptional, expansive laws are much more often accorded constitutional respect. Lawyers sometimes lag — and the Supreme Court is not always consistent in its course.
Professor Bowie has collected and read closely a very large lot of cases, however.
His main point is the larger movement. Convinced his chronology holds, he readily reaches conclusions about the content of constitutional law as we ought to understand it as of now. Cases that we might suppose are complicated are not, he argues. Re-embracing a free speech right to refuse to pay agency fees to public sector unions was plainly error. This is an old thought. He was working with the article I, section 8 list of congressional powers, along the way assuming that no other constitutional terms were pertinently constraining his readings.
No constitutional endorsements of legislative authority, either federal or state, were thought to be immediately implicated. There was not much need therefore, it may have seemed, to judge separately immediate infringements of rights and oblique obstructions. Bowie depicts the Supreme Court, over the last three decades or so, as now putting up fences, hedging rights-readings in service of working government, more or less independently of whether specific constitutional constraints are pertinent. Gaps open up in constitutional law, not news we know. After , for example, a great host of Supreme Court Commerce Clause decisions were quite quickly deemed to be irrelevant, Justices openly marking the phenomenon.
Around also, an entire herd of substantive due process opinions looked to have wandered off too, recognized suddenly as extinct, kin to mastodons or wooly mammoths. Board of Education began to recede from view, maybe not so quickly or completely, obscured by a crowd of new Supreme Court remedial concerns and hesitations. The question is not whether we forget Barnette itself.
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Bowie suggests that he would not. Many of us — Justice Kavanaugh, for example — say we feel this way about Brown. Too: the four decades show off an exuberantly critical mass of talented, ambitious, creative, independent-minded, only sometimes coalescing Justices: Black, Frankfurter, Douglas, Jackson, Warren, Harlan, Brennan, Marshall, Rehnquist, Powell — just for starters. A golden age? Barnette one of its especially bright pillars? Or too often too brilliant, we might think perhaps remembering Daniel Farber. These gatherings may not be stable, instead networks open to further rhizome-like elaborations.
Forty years of cases, often enough over time sprawling well beyond initial points of departure, in fact spurred more than a few aggressively re-thought organizings, we know. He perhaps appreciates Oedipus at Colonus. Heroic figures and their great works belong underground, now-chthonic forces: turbulences, a warning perimeter of sorts, maybe only safely within which ordinary work might be done.
Less disciplined, I peer just for a moment. Sullivan is exemplary. The first amendment and the fourteenth amendment effectively incorporated — looked to — each other. Rehnquist — Near to invisible, his masterpiece for present purposes may be Jean v. Nelson , decided in The United States government had detained hundreds of Haitian arrivals, undocumented and excludable, for an extended, indefinite period of time at its Miami Krome Avenue detention facility — which had become effectively an internment camp.
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