Research Paper Due Process Revolution

Due Process and the Non-Citizen: A Revolution Reconsidered

58 PagesPosted: 25 Sep 2014Last revised: 4 Feb 2015

Date Written: September 24, 2014


Mathews v. Eldridge is typically understood to be a ruling limiting due process protections in benefits determinations, but this case of judicial restraint in ordinary domestic law has activist features where non-citizens are concerned. The transplantation of Mathews into the critical areas of immigration and national security has produced a body of law that is slowly ushering in rights-affirming outcomes and weakening conventional doctrines of exceptionalism in immigration and national security. There are two chief reasons for this. First, ever since Mathews required an explicit judicial determination of private interests, courts have used an increasingly particularistic, case-by-case analysis in immigration and national security that supplants traditional, group-based inquiries into sovereignty, citizenship, and territoriality. Second, because Mathews requires a judicial assessment of the merits of various policies, courts have become much more actively involved in considering — and, at times, constraining — administrative and quasi-administrative action. Although courts still frequently yield to government interests in immigration and national security cases — Mathews has not caused a sea change in due process protections — the “Mathewsization” of both fields has changed the judicial role, with payoff for individual rights. Moreover, this payoff extends beyond the courts, for the coordinate branches, too, are experiencing a Mathewsization of sorts. In a world defined by fractious institutional power grabs, the new due process has prevented executive and congressional overreach, stimulating a new legal-process-oriented methodology of inter-branch coordination in areas of law once defined by extreme deference to the judiciary.

Suggested Citation:Suggested Citation

Landau, Joseph Benjamin, Due Process and the Non-Citizen: A Revolution Reconsidered (September 24, 2014). Connecticut Law Review, Vol. 47, No. 3, February 2015; Fordham Law Legal Studies Research Paper No. 2500985. Available at SSRN:

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The "due process revolution" was a direct response by the U.S. Supreme Court under the leadership of Chief Justice Earl Warren to a growing history of state supreme court decisions that were interpreted by Warren and others on the Court as unfairly and unconstitutionally depriving criminal defendants of their rights.  The United States, of course, was comprised of the 48 contiguous states, with Alaska and Hawaii being added in 1959.  Among those 50 states were 50 different judicial systems, making the propensity for judicial actions in contravention of the intent of the Framers of the U.S. Constitution inevitable, especially given the fractious nature the nation's divide along the old Mason-Dixon line.  As a result, state courts were frequently deciding in favor of state prosecutors in instances where the U.S. Supreme Court would later determine defendants' rights had been violated.  Among those cases was the U.S. Supreme Court's 1965 decision in Pointer v. Texas, where the defendant, Bob Granville Pointer, stood accused and was tried on a charge of robbery despite the main witness's having left the state.  That witness, however, had earlier provided a statement that was used by the prosecution to convict Pointer, who had been without counsel during the earlier crucial phases of the judicial process.  In its eventual decision, the U.S. Supreme Court ruled in Pointer's favor, noting that he had been denied due process under the Constitution.

Additional cases involving questionable adherence to the text and, often the intent, of the Constitution precipitated a marked movement by Chief Justice Warren to emphasize individual rights, a movement that became known as the "due process revolution."  At the heart of this "revolution" was the Warren Court's efforts at reaffirming the importance of the Fourth and Fifth Amendments to the Constitution that, respectively, protected citizens' rights against unreasonable searches of their property and against self-incrimination.  

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