Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process'

417 Pages Posted: 29 Sep 2017

See all articles by Peter Bayer

Peter Bayer

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: September 27, 2017


This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation and the Reconstruction Congress properly believed in natural rights derived from principles of natural law. Accordingly, they sought to enforce through the Constitution, the natural rights philosophy set forth in the Declaration of Independence. Most importantly, natural law and resultant natural rights are deontological, that is, they enforce a priori, immutable moral precepts that descend not from human imagining but from the natural order of existence, what the Declaration denoted as, “Nature and Nature’s God.” That is why, under the Constitution, any and all immoral governmental conduct is unconstitutional regardless of bureau or actor - legislative, judicial, executive or administrative - and regardless of level - federal, state or local.

Unlike articles that aver similar ideas, this writing presents Deontological Originalism as a metatheory, meaning, it expounds at once essentially all fundamentals, and their respective proofs, as indeed any work defining and defending a theory of Originalism should do. Metatheory accounts for this commentary’s length; but, frankly, it is time that one law review article presented a meta-theoretical perspective given the exasperated skepticism and postmodernist complacency most often greeting serious assertions that the Constitution enforces natural law and, therefore, the bench and bar must become “natural lawyers” when addressing constitutional rights. After thirty years of perhaps sporadic writings addressing many of the relevant aspects, I offer Deontological Originalism, a venture proceeding from the utility of Originalism, to the meaning of Deontology, to the intent of the Founders and of the Reconstruction Congress, to the deontological principles of Enlightenment philosopher Immanuel Kant, to modern due process dignity theory enforcing Deontological Originalism through Kantian morality, culminating in the Supreme Court’s bravura rulings requiring that Government accord same-sex marriage the full and equal legal status accorded opposite-sex marriage.

Specifically, this article proceeds as follows: Part I provides a general introduction.

Part II explains why Originalism’s claim that “original meaning” is the sole appropriate source of constitutional meaning is correct. This section is essential lest critics assert that constitutional theory should care nothing about Originalism, but instead simply concern itself with discerning and applying moral precepts. Rather, it is important to the legitimacy of America to determine whether indeed the Framers were deontologists who expected constitutional law to be discerned pursuant to deontological principles. Accordingly, Originalism is the proper framework for deontological constitutionalism.

Because Deontological Originalism is premised on Deontology, the next logical step is to prove that moral principles indeed are immutable, a priori and emanate not from individuals’ imaginations but rather from impartial reason. Part III explains that, contrary to the unsupported assumptions made by most legal commentators, morality is not humanly created, but rather is deontological.

Having established the proper philosophical framework, Part IV demonstrates that happily, the Founders and their successors in 1868 knowingly and deliberately incorporated deontological moral principles into the Declaration of Independence and the Constitution. They understood as well that the Constitution must be interpreted pursuant to the best moral theory extant. Because they freely acknowledged knowing moral truth only imperfectly, the Framers entreated successor generations to comprehend the Constitution by discerning morality more completely even if that superior understanding invalidated deeply-rooted moral suppositions of the Framers and their greater society.

Addressing what the applicable precepts of morality precisely are, Part V extolls the deontological perspectives of the Enlightenment philosopher Immanuel Kant. Kantian morality is the better theory the Founders anticipated might well be discerned to apply the natural law precepts of constitutional liberty. Accordingly, constitutional morality must be understood in Kantian terms even though Kant composed his theories shortly after the American Revolution and the Constitution’s ratification.

Lastly, Part VI demonstrates that the modern Supreme Court employs not one, but two different and irreconcilable frameworks when addressing liberty, meaning, constitutional issues sounding in “due process of law.” One standard defines due process liberty empirically, based on discerning applicable liberty principles “deeply rooted” in American history and culture. I argue that reducing the meaning of liberty essentially to an uncritical historical review based on popular culture defies the moral standards set forth in the Declaration. The second framework defines due process liberty in terms of protecting and respecting the “dignity” innate in every human being. Although declining to so attribute, through this dignity approach, the Judiciary correctly evokes Kantian moral theory to animate the Constitution’s overarching guaranty of morality found in the liberty provisions of the Due Process Clauses. As part of that final proof, this writing explains why the recent 2015 decision Obergefell v. Hodges, ruling that the Constitution requires the States to treat same-sex marriages equally with opposite-sex marriages, is eminently correct constitutional moral theory.

Keywords: originalism, deontology, Kant, due process, substantive due process, morality, framers, Reconstruction Congress, Obergefell

Suggested Citation

Bayer, Peter, Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process' (September 27, 2017). Available at SSRN: or

Peter Bayer (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

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Box 451003
Las Vegas, NV 89154
United States
702-895-2480 (Phone)

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