Vanderbilt Law Review

First Page



On the eve of the American Revolution, Blackstone could comment that "so great.., is the regard of the [English] law for private property ... it will not authorize the least violation of it; no, not even for the general good of the whole community."' A similar concern for proprietary interests soon found expression on this side of the Atlantic in what Professor Corwin has called "The Basic Doctrine of American Constitutional Law"; namely, the "doctrine of vested interests." The general purport of this concept was that "the effect of legislation on existing property rights was a primary test of its validity..... In brief a sense of insecurity among the comfortable classes in the face of early American democracy led courts at first to invoke natural law and social contract principles for the insulation of vested interests from legislative regulation. But extra-constitutional restraints upon government were hardly compatible with written constitutions. For this and other reasons, after flirting with ex post facto and contract clauses and with the separation of powers, the doctrine of vested interests finally settled in the law of the land or due process provisions that were (and are) ubiquitous in American constitutions. Granting all this as accepted learning, the present thesis is that by the end of the eighteenth century the orthodox procedural meaning of due process was too thoroughly established semantically, contextually and historically to accommodate a radically new, i.e. substantive meaning without some respectable constitutional go-between; namely,the separation of powers. Professor Corwin was well aware of the importance of separation principles in the development of the doctrine of vested interests." But neither he nor his followers appear to have noticed the importance of those principles in the metamorphosis of due process.