Due Process and the Administrative State

Abstract

If ever a constitutional doctrine has fallen from grace, it is the doctrine of procedural due process.By far the oldest of our civil rights, I its content seemed so clear to prior generations that they included the term "due process" in the fifth and fourteenth amendments virtually without discussion.'Although great controversy arose about the applicability of due process to nonprocedural or substantive matters, procedural due process doctrine evolved quietly and steadily, surviving the demise of its controversial cognate without notable impairment.Even the expanded reliance on procedural due process during the loyalty-security crisis of the 1950's and the welfare rights movement of the 1960's did little to disturb its charmed stability.All of this has come to an end during the past decade.The procedural due process doctrine is now the subject of intense debate, with its central meaning regularly questioned by both courts and commentators.This descent into uncertainty is largely the result of the Supreme Court's conscious effort to define the interests to which the due process clause relates.While the answer seems clear enough for criminal and civil trials, it has proved to be a dark conundrum for newer forms of government activity, such as benefits programs, licensing, mass em-