The Arc of Due Process in American Constitutional Law

"Controversies over military tribunals, parental rights, same-sex marriage, information privacy, procedural rights of juveniles and prisoners, physician-assisted suicide, and reproductive rights fill the landscape of contemporary legal debate and media discussion. All fall under the umbrella of the Due Process Clauses of the United States Constitution and its protection against arbitrary government action. In The Arc of Due Process in American Constitutional Law, Sullivan and Massaro describe the intricate history of modern due process rights, beginning with its 'rule of law' roots. They maintain that constitutional theory and practice must take this long history, and especially its inherent dynamism, into account. The authors then describe the doctrinal elaboration of due process principles in American constitutional law and identify the fundamental norms that bind this broad swath of constitutional law together. They focus on the primary strands of due process - procedural and substantive - and explore the hybrid zone between them, as well as their interdependence. Finally, they defend the judicial practice of redefining due process over time to accommodate the forces of change. Judges must work within the historical, doctrinal, and normative framework of their predecessors, but likewise must respect these legal traditions without tethering modern courts to exclusive or unthinking reliance on past practices. Judicial humility and wisdom thus require considerable restraint, but also acceptance of responsibility for effecting positive evolution of law. This is the inescapable paradox of judicial power to interpret the Constitution, and is most powerfully evident when judges define deprivations of 'life, liberty, or property, without due process of law'"--Unedited summary from book jacket.