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Article Title

The Little Word "Due"

Authors

Andrew T. Hyman

Abstract

The Fifth and Fourteenth Amendments bar the government from depriving anyone of “life, liberty, or property, without due process of law.” The ambiguity of that phrase has kept the judiciary busy for many generations, but that same ambiguity has become “completely eclipsed by the little word ‘due.’” The goal of the present article is to study this critical word, and in particular to examine whether a process is automatically “due” if it is owed according to positive law, or alternatively whether a process can only be “due” if it accords with judicially ascertained principles of liberty and justice. The present article concludes that the latter interpretation is incorrect, and that the Due Process Clause should not be used to convert natural law into enforceable law outside the democratic and republican procedures established by the Constitution.

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