Document Type
Article
Publication Date
2013
Abstract
This article begins by asking what constitutional provision is violated by the enforcement of law without a lawmaker. Taking a positivist view—i.e., that law does not exist without a lawmaker—it concludes that the problem of law without a lawmaker collapses into the problem of coercion without law. Coercion without law violates the Due Process Clause in an obvious way: it is deprivation of something “without … law.” The article then explores the existence of this form of substantive due process in American law, arguing that we find it in three somewhat surprising places: Lochner-era substantive due process; modern federalism cases like Morrison, Lopez, and Bond; and Erie itself. Erie’s constitutional source, it concludes, is the Due Process Clause.
Keywords
Constitutional law, coercion, substantive due process of law, Lochner, federalism, Erie v. Tompkins, federal common law, overbreadth, third-party standing, states’ rights
Repository Citation
Roosevelt, Kermit III, "Valid Rule Due Process Challenges: Bond v. United States and Erie’s Constitutional Source" (2013). Faculty Scholarship at Penn Law. 398.
https://scholarship.law.upenn.edu/faculty_scholarship/398
Included in
Common Law Commons, Constitutional Law Commons, Courts Commons, Fourteenth Amendment Commons, Public Law and Legal Theory Commons
Publication Citation
54 Wm. & Mary L. Rev. 987 (2013)