Adversary Democratic Due Process

Martin H Redish, Victor Hiltner

Research output: Contribution to journalArticle

Abstract

Legal minds have long quarreled over the true meaning of the Due Process Clauses of the Fifth and Fourteenth Amendments, but little consensus has emerged as to their scope and application. Despite the doctrinal significance and ubiquity of due process, scholars have devoted troublingly little attention to the underlying premises or “DNA” of this fundamental constitutional right. Consequently, litigants’ claims to adjudicatory procedures have been consistently undervalued on the myopic utilitarian scale of costs and benefits that has imposed a chokehold on current doctrine, and no viable alternative approach has emerged to take its place. This Article seeks to fill that intellectual void and provide a superior model of procedural due process, one that grounds it in the democratic theory inherent to American constitutionalism—what this Article terms “liberal adversary democracy.” Liberal adversary democracy is an outgrowth of the Framers’ belief that, in the face of an increasingly divisive and diverse polity, defensively invoking conflict, mistrust of others, and fear of unchecked power is the best (if not the only) way to safeguard liberal values of individual development, growth, and dignity. This Article demonstrates that procedural due process is a product of liberal adversary democracy, providing one of the most foundational defensive guarantees that both protects individual liberty and legitimizes democracy itself. To serve its democratic function, procedural due process must be imbued with the protective skepticism of liberal adversary democracy. This adversary democratic model of due process would revolutionize the present under-protective due process jurisprudence of today and provide clear normative guidance for all future procedural due process inquiries.
Original languageEnglish (US)
Pages (from-to)483-547
JournalFlorida law review
Volume75
Issue number3
StatePublished - 2023

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