Law, College of
Nebraska Law Bulletin (Selected Issues)
Date of this Version
9-23-2020
Document Type
Article
Citation
Nebraska Law Bulletin (September 23, 2020)
Abstract
Much has been written and debated about due process. In my view, most of the literature looks past the simple deductions arising from the text; that due process must have reason and objectivity; that liberty and property are best defined by sic utere; that the word “law” in the due process clause cannot logically mean any statute the legislature passes; and finally, that the separation of powers demands that judges, not legislatures, make and enforce these determinations. Even more simply, since the Court has never officially abandoned rational basis, it should stop using the phrase as a prop in a game of charades. If the Court continues to advertise the rational basis shell corporation, then it should once again start conducting business.
Comments
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