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.
Roosevelt, Kermit III, "Valid Rule Due Process Challenges: Bond v. United States and Erie’s Constitutional Source" (2013). Faculty Scholarship at Penn Law. 398.