Gedicks on An Originalist Defense of Substantive Due Process

Frederick Mark Gedicks, Brigham Young University, has posted a new paper, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment. Here's the abstract:

Criticism of substantive due process has had particular resonance since the Reagan administration endorsed originalist theories of constitutional interpretation. The most widely defended version of originalism is so-called public meaning originalism, which holds that the contemporary meaning of a constitutional provision is the public meaning understood by those who lived at the time that the provision was drafted and ratified.

Because substantive due process is a central constitutional rights doctrine, and originalism now defines the terms of most debates about constitutional meaning, it is important to investigate whether substantive due process can be defended on originalist grounds. With particular respect to the Fifth Amendment Due Process Clause, such a defense would solidify substantive individual rights that bind the federal government only through that Clause, create a presumption that substantive due process was also within the original meaning of the Fourteenth Amendment Due Process Clause, and demonstrate that originalism is not inconsistent with the progressive, common law development of individual rights championed by constitutional liberals.

I argue that one widely shared understanding of the Due Process Clause of the Fifth Amendment in the late eighteenth century encompassed unenumerated substantive rights as a limit on congressional power. The concept of due process as a substantive limitation on government rests on Sir Edward Coke's notion of a higher-law constitutionalism that limited the Stuart kings and, perhaps, even Parliament. Coke's reading of substance into due process was adopted by the American colonies and carried into independence. It is evident from both post-Independence cases and the ratification controversy over the lack of a bill of rights that Americans of the period understood natural and customary rights to be invested with an existence and normative force as higher or constitutional law that did not depend upon their enumeration in a written constitution.

The original meaning of the due process of law in the Fifth Amendment includes a particular understanding of law inherited from the classical natural law tradition, which held that an unjust law was not really a "law." Many late-eighteenth century judges and attorneys believed that legislative acts that violated natural or customary rights were not truly laws, irrespective of their compliance with written constitutional prescriptions for the creation of positive law. Accordingly, deprivations of life, liberty, or property under the authority of such acts were not understood to comply with the law of the land or the due process of law, because the deprivations were not accomplished in accordance with "law."

The classical understanding of law in the Fifth Amendment Due Process Clause is evident in legal dictionaries and in judicial decisions and arguments of counsel during the years before and immediately after ratification of the Bill of Rights in 1791. On balance, there is sufficient historical evidence to support the conclusion that at least one common public understanding of the Due Process Clause of the Fifth Amendment in 1791 was that it protected unenumerated natural and customary rights against encroachment by Congress.