The Yale Law Journal

VOLUME
121
2011-2012
NUMBER
7
May 2012
1584-2031
Essay

Due Process as Separation of Powers

Nathan S. Chapman & Michael W. McConnell

121 Yale L.J. 1672 (2012).

From its conceptual origin in Magna Charta, due process of law has required that
government can deprive persons of rights only 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 a 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 substantive 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 twentieth-century cases
which have not been fully analyzed under the requirements of due process of law.