Document Type
Article
Publication Title
Florida Law Review Forum
Publication Date
2-2024
Page Number
52
Keywords
due process, democracy, regulatory state
Disciplines
Constitutional Law | Fourteenth Amendment | Law
Abstract
Due process protection is typically regarded as a human right, akin to free exercise of religion or the privilege against self-incrimination. In Adversary Democratic Due Process, Authors Martin H. Redish & Victor Hiltner argue that it has a deeper and more comprehensive significance.' They view due process as a basic component of democracy, an essential element in our entire system of government. In this comment, I will endorse Authors Redish and Hiltner's thesis and offer an additional perspective to support it. In addition, I agree with nearly all the implications they draw about specific applications of their thesis, but take issue with some of their conclusions about the application of the Due Process Clause in administrative settings. The genius of democracy, in Authors Redish and Hiltner's view, is that it combines two seemingly opposite views of human beings. One is a hard-headed recognition that people are strongly motivated by self- interest and necessarily come into conflict with one another on this basis. The other is an aspirational view that people seek self-actualization and strive to achieve the common good for their society.' Denying the first tendency is naive, denying the second is cynical, and denying either is reductionist.
Recommended Citation
Edward Rubin,
Due Process, Democracy, and the Regulatory State: A Response to Martin Redish and Victor Hiltner's Adversary Democratic Due Process, 75 Florida Law Review Forum. 52
(2024)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1601