Does Due Process Have an Original Meaning? On Originalism, Due Process, Procedural Innovation . . . And Parking Tickets

52 Pages Posted: 11 Sep 2006

See all articles by Lawrence Rosenthal

Lawrence Rosenthal

Chapman University, The Dale E. Fowler School of Law


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 procedure that infringe 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 due process. Nevertheless, it seems to have gone unnoticed that in jurisprudence and scholarship about procedural due process, originalism is nearly entirely absent.

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. While it is crucial to the originalist project that constitutional provisions have a reasonably ascertainable original meaning, originalists have spent little time defending that assumption. In this article, I challenge that assumption for the Due Process Clauses of the Fifth and Fourteenth Amendments. The article considers the original understanding of procedural due process, and demonstrates that by the time 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. It may be that many constitutional provisions, in order to obtain supermajority support, were drafted in broad and relatively abstract terms, in order to minimize objections. Thus, it many be that the original meaning of much of the Constitution is indeterminate, and accordingly can be construed only through a common law process of judicial elaboration.

Keywords: constitutional law, constitutional theory, constitutional interpretation, due process, civil procedure, criminal procedure

Suggested Citation

Rosenthal, Lawrence, Does Due Process Have an Original Meaning? On Originalism, Due Process, Procedural Innovation . . . And Parking Tickets. Oklahoma Law Review, Vol. 60, No. 1, 2007, Available at SSRN:

Lawrence Rosenthal (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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