Volume 16
Issue 2
Summer '18

Irresistible Force Meets Immovable Object: Hadley Arkes, Due Process, and Me

Written By: Matthew J. Franck

Abstract

Recent revisionist scholarship on the due process clause has suggested that a “substantive” reading of due process predates the Dred Scott case, and provides support for a natural-law jurisprudence in which judges invalidate statutes as unreasonable or unjust. Thus, historical scholarship appears to bolster the philosophical arguments of Professor Hadley Arkes, well-known for his view that judges should go “beyond the Constitution” in their decision-making. The present article, building on a previous reexamination of these purported antebellum precedents for substantive due process, revises the revisionists—including Professor Arkes—arguing that due process requires only conformity with basic rule-of-law principles of generality and prospectivity in the enactment of laws, and procedural regularity in their execution. As for the role properly played by natural-law reasoning, the widely divergent approaches of John Marshall and Stephen Field are contrasted, in order to illustrate how discernment of the Constitution’s meaning differs from going beyond it.

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