Originalist Roots of Substantive Due Process
BYU Clark Memorandum, Fall 2009
8 Pages Posted: 3 Jul 2009 Last revised: 9 Jun 2015
Date Written: July 2, 2009
The notion 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 perhaps even parliamentary lawmaking. The American colonies adopted higher-law constitutionalism in their revolutionary struggle, carried it with them through independence and constitutional ratification, and constitutionalized it in the Fifth Amendment Due Process Clause.
Substantive due process of law is made textually consistent with the Fifth Amendment Due Process Clause by the normative definition of “law” inherited from the classical natural law tradition, which maintained that an unjust law was not really a law. Deprivations of life, liberty, or property effected on the authority of unjust legislative 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 the due process of law 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 the Fifth Amendment Due Process Clause in the late eighteenth century included judicial protection of unenumerated substantive rights against congressional encroachment.
Prepared for the BYU Law School alumni magazine, this short essay summarizes my detailed defense of this thesis in “An Originalist Defense of Substantive Due Process,” 58 Emory Law Journal 586 (2009).
Keywords: Constitutional Interpretation, Due Process Clause, Fifth Amendment, Originalism, Substantive Due Process, Uneumerated Rights
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