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Take the Fifth... Please!: The Original Insignificance of the Fifth Amendment's Due Process of Law Clause

61 Pages Posted: 11 Jul 2017  

Gary Lawson

Boston University School of Law

Date Written: July 7, 2017

Abstract

The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law” – from the principle of legality forbidding executive or judicial action in the absence of law to the requirement of notice before valid judicial judgments to a limitation on arbitrary governmental action that today goes under the heading of “substantive due process” – is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process of Law Clause confirms those principles but does not create them. Accordingly, originalist attention should be focused on the Constitution itself, not on the “exclamation point” added to it in 1791.

This article defends those claims and also briefly explores why and how modern doctrine has moved from this substantively-oriented account of limitations on governmental powers to a focus on executive and judicial procedures. That shift may result in some measure from doctrine under the Fourteenth Amendment’s Due Process of Law Clause. The limitations on federal power built into the Constitution of 1788 obviously do not apply to state governments, so attributing the Fifth Amendment’s meaning to the Fourteenth Amendment makes little sense (though if that really is what the original meaning of the Fourteenth Amendment does, that is just life). A proceduralist account of due process of law makes some sense under the Fourteenth Amendment, but it is a large mistake to read that proceduralist account back into the Fifth Amendment.

The bottom lines are that the Fifth Amendment’s Due Process of Law Clause (1) is much more about substance than about procedure and (2) is basically irrelevant to the Constitution’s original meaning.

Keywords: Due Process, Fifth Amendment, Fourteenth Amendment, Original Meaning, Principle of Legality.

Suggested Citation

Lawson, Gary, Take the Fifth... Please!: The Original Insignificance of the Fifth Amendment's Due Process of Law Clause (July 7, 2017). Brigham Young University Law Review, Forthcoming; Boston Univ. School of Law, Public Law Research Paper No. 17-21. Available at SSRN: https://ssrn.com/abstract=2998733

Gary Lawson (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-3812 (Phone)

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