The arc of due process in American constitutional law

264 Pages·2013·3.11 MB·English

by  E. Thomas Sullivan

Th e Arc of Due Process in
American Constitutional Law
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Th e Arc of Due Process
in American Constitutional Law
E. Th omas Sullivan , President, University of Vermont
and
Toni M. Massaro , Regent’s Professor and
Milton O. Riepe Chair in Constitutional Law ,
University of Arizona

1
1
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Library of Congress Cataloging-in-Publication Data
Sullivan, E. Th omas.
Th e arc of due process in American constitutional law/E. Th omas Sullivan and Toni M. Massaro.
pages cm
Includes bibliographical references and index.
ISBN 978-0-19-999080-1 (hardback : alk. paper)
1. Due process of law—United States. I. Massaro, Toni Marie, 1955—II. Title.
KF4765.S85 2013
347.73'5—dc23
2012042268

9 8 7 6 5 4 3 2 1
Printed in the United States of America on acid-free paper
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To
Leslie Black Sullivan (ETS)
and
Genevieve Leavitt (TMM)
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{contents}
Acknowledgments ix
Preface xi
1. English History and Rule of Law Roots of American Due Process 1
2. Th e Primary Divide: Procedural versus Substantive Due Process 38
3. What Process Is Due? 81
4. What Liberties Are Protected? 122
5. Due Process Hybrids 168
6. A Th eory Runs Th rough It 216
Index 239
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{acknowledgments}
Tom Sullivan would like to acknowledge with appreciation the University of
Minnesota, which provided him with a leave for the winter semester 2012 to fi nish
this book. He also acknowledges with appreciation the University of Minnesota Law
School, including Dean David Wippman and the faculty, especially Professors Robert
Stein and Brian Bix, who gave comments on portions of this book. He also would like
to recognize and extend a special appreciation to his research assistants Tom Pryor
(Class of 2013), Emily Puchalski (Class of 2013), Eric Friske (Class of 2013), Daniel
Schiff (Class of 2011), Cicely Miltich (Class of 2011), and Mary Alice Schumacher,
his administrative assistant. Also, he would like to express deep appreciation to col-
leagues at New York University Law School who hosted him as a Visiting Professor
for the winter 2012 semester, including Dean Richard Revesz and Vice Dean Randy
Hertz, and Robert Anselmi, his administrative assistant at NYU.
Toni Massaro would like to acknowledge with appreciation the University of
Arizona James E. Rogers College of Law for research and ongoing intellectual
support. Special thanks go to Professor Barbara Atwood, for her characteristi-
cally wise comments and warm support; her excellent research assistants Joseph
Ezzo (Class of 2012), Emily Peiff er (Class of 2014), Michael Shumway (Class of
2013), Nick Verderame (Class of 2013), and Matt A. Walker (Class of 2013); Ms.
Sandy Davis, Ms. Judith Parker, Ms. Barbara Lopez and Ms. Carol Ward for superb
administrative and secretarial support; and Ms. Maureen Garmon—world’s best
research librarian. Finally, she wishes to acknowledge the enormous intellectual
debt she owes to her Arizona faculty colleagues and to her Stanford co-authors
and colleagues, Barbara Allen Babcock and Norman Spaulding. All give meaning-
ful substance to the professional process—through “thick and thin.”
Th is work builds on our prior work, including writings in the following
publications:
• E. Th omas Sullivan and Richard S. Frase, Proportionality Principles in
American Law (2009).
• E. Th omas Sullivan and Toni M. Massaro, D ue Process Exceptionalism , 46
The Irish Jurist (2011).
• Toni M. Massaro, Constitutional Law as “Normal Science,” 21 Const.
Comment . 547 (2004).
• Toni M. Massaro, Substantive Due Process, Black Swans, and Innovation ,
Utah L. Rev. 987 (2011).