Constitutional Fact: How Far Does Due Process Require the Independent Judgment of Judges
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Authors
Merrill, Maurice H.
Issue Date
1969
Type
Journal Article
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Abstract
FIRST PARAGRAPH(S)|Professor Frank Strong, in a trenchant article, written with his usual wit and acuity, recently has raised the question of the persistence of the doctrine of "constitutional fact." It seems to me, however, that he deals with two substantially different constructs under the same title. In the first part of his writing, he treats the rule first enunciated in Ohio Valley Water Company v. Ben Avon Borough, elaborated upon by the fancy of "constitutional jurisdictional fact" in Crowell v. Benson, and supposedly reaffirmed after full debate in St. Joseph Stock Yards Company v. United States, to the effect that whenever an administrative ruling is challenged on grounds of its unconstitutionality and the question of validity depends upon the resolution of issues of fact, the administrative view of the facts, even on reasonably convincing evidence, may not be accorded finality. Instead, it is an inexorable command of due process of law that the party affected have a "fair opportunity for submitting that issue to a judicial tribunal for determination, upon its own independent judgment" as to the facts. After a review of the course of decision, Professor Strong finds the doctrine perhaps moribund but not wholly without possibility of revival...
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Citation
2 Creighton L. Rev. 45 (1968-1969)
Publisher
Creighton University School of Law