From Volume 75, Number 6 (September 2002)DOWNLOAD PDF
In 1976, Professor Hans A. Linde published his pathbreaking paper, Due Process of Lawmaking. That article focused attention on a subject of subtlety and importance: To what extent should the processes by which laws are enacted affect their validity under seemingly substantive constitutional provisions like the First Amendment and the Equal Protection Clause? Anticipating a flurry of recent scholarship, Justice Linde took particular interest in whether the absence of legislative findings offered in support of an otherwise duly enacted law should bear upon that law’s constitutionality.
Drawing in part on Justice Linde’s work, Professor Laurence Tribe began in the same time frame to advocate a style of judicial review that combines both process-centered and substance-centered components. In doing so, he documented the pre-Rehnquist Court’s use of this technique in high-profile cases—such as New York Times Co. v. United States, Hampton v. Mow Sun Wong, and Mississippi University for Women v. Hogan—to invalidate statutes and rules. Professor Tribe also gave this approach to constitutional decisionmaking a name, calling it “structural due process.” For a variety of reasons, I prefer the more encompassing term “semisubstantive review.”