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Unpublished Paper
An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment
ExpressO (2008)
  • Frederick Mark Gedicks
A longstanding scholarly consensus holds that the Due Process Clause of the Fifth Amendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, and the emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps. One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of “substantive” due process originated in Sir Edward Coke’s notion of a “higher-law” constitutionalism that understood natural and customary rights as limits on crown prerogatives and parliamentary lawmaking. The American colonies adopted higher-law constitutionalism in their revolutionary struggle, and carried it with them through independence and constitutional ratification. Natural and customary rights limited the exercise of legislative power in the late eighteenth century through the normative definition of “law” inherited from the classical natural law tradition, which maintained that an unjust law was not really a “law.” American judges and attorneys did not consider legislative acts that violated natural or customary rights to be real “laws,” regardless of their compliance with a positivist rule of recognition. Accordingly, deprivations of life, liberty, or property effected on the authority of such acts did not comply with the “law” of the land or the due process of “law,” because regardless of the process such acts afforded, the deprivations they imposed were not accomplished by a true “law.” The classical understanding of “law” and the substantive understanding of due process that it underwrote are evident in legal dictionaries and in judicial decisions and arguments of counsel during the years immediately before and after ratification of the Bill of Rights in 1791. On balance, these authorities show that one widely held public understanding of Fifth Amendment Due Process Clause in the late eighteenth century included judicial protection of unenumerated substantive rights against congressional encroachment. Given the contemporary dominance of originalist theories of interpretation, an originalist defense of substantive due process under the Fifth Amendment is important for at least three reasons. First, such a defense provides a textual footing for important unenumerated substantive rights against the federal government. Second, because the original meanings of the Fifth and Fourteenth Amendment Due Process Clauses are widely thought to be identical, the originalist defense dramatically alters the interpretive landscape surrounding Fourteenth Amendment substantive due process, placing on its opponents the burden of explaining how and why the substantive understanding of due process in 1791 was lost by 1868. Finally, an originalist defense of substantive due process demonstrates that originalism is consistent with the progressive, common law recognition of individual rights.
  • judicial review,
  • unenumerated rights,
  • constitutional interpretation,
  • substantive due process,
  • due process clause,
  • originalism
Publication Date
February 26, 2008
Citation Information
Frederick Mark Gedicks. "An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment" ExpressO (2008)
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