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Does Due Process Have an Original Meaning? On Originalism, Due Process, Procedural Innovation . . . and Parking Tickets
Oklahoma Law Review (2007)
  • Lawrence Rosenthal

Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems for administrative adjudication of parking ticket cases now used in many municipalities that this article uses as an example of the problems that inhere in an originalist account of procedural due process. Nevertheless, it seems to have gone unnoticed that in jurisprudence and scholarship about procedural due process, originalism is nearly entirely absent.

The Constitution twice forbids deprivation of life, liberty, or property without due process of law, but originalists have been unable to develop an account of what type of process should be considered “due” based on a framing-era understanding of due process. Their failure has important implications for originalism as a method of constitutional interpretation. This paper argues that the objections to the view that the two Due Process Clauses forbid procedural innovation subsequent to their ratification are more than consequentialist -- they are originalist as well. An inquiry into the original understanding of due process shows that the original meaning of these constitutional provisions – and perhaps many others – was of an evolutionary and common law character.

This article considers the original understanding of procedural due process, and demonstrates that by the time of the Fourteenth Amendment’s Due Process Clause was ratified, the Supreme Court had decisively rejected the understanding of due process contained in the law of England, which had afforded nearly absolute deference to legislative innovation, but had replaced it with no clear or coherent account. As of 1868, due process operated not as a fixed set of rules – the meaning of due process at the time of the framing was too amorphous to support that view – but instead to delegate to the judiciary responsibility for countermajoritarian oversight of the manner in which persons are deprived of life, liberty, or property. This evolutionary and common-law conception of due process is consistent with the evolutionary character of civil and criminal procedure up until the adoption of the Due Process Clause, as well as the tradition of common law constitutional adjudication that had taken firm root by 1868. In short, the original meaning of the Due Process Clause was nonoriginalist.

This account has implications for substantive due process as well. If the concept of due process was intended to evolve through common law adjudication, surely that was equally true for its procedural and substantive components. Indeed, the original meaning of much of the Constitution may be nonoriginalist.

  • constitutional law,
  • constitutional interpretation,
  • constitutional theory,
  • due process
Publication Date
Spring September 8, 2007
Citation Information
Lawrence Rosenthal, Does Due Process Have an Original Meaning? On Originalism, Due Process, Procedural Innovation . . . and Parking Tickets, 60 Okla. L. Rev. 1 (2007). Available at: