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John McGinnis on Justice Gorsuch's Originalism in the Dimaya Case
Michael Ramsey

At Liberty Law Blog, John McGinnis: Gorsuch’s Originalist Exploration of the Legal Meaning of Due Process.  It begins: 

The press has been spinning Justice Gorsuch’s vote in favor of a resident alien in Dimaya v. Sessions as a surprising decision to side with the liberal justices. But that storyline misses out on the real significance of his action, which lies in his opinion, not his vote, however decisive. That opinion shows instead that he will be a sophisticated modern originalist, at least where precedent does not dictate otherwise, no matter where that originalism takes him.


First, Gorsuch reads due process as part of the language of the law. As Mike Rappaport and I have noted, if due process is read, as it can be, in ordinary language, the term would appear to mean something like fair procedure, a pretty open-ended concept. Instead, Gorsuch interprets it as requiring “customary procedures to which freemen were entitled by the old law of England.” And he finds that fair notice was something to which freemen were entitled and which courts enforced. This is a legal reading of due process, much like one the Laura Donohue gives to “reasonableness” under the Fourth Amendment, which requires searches to follow the strictures of the common law.

Gorsuch also notes that many of the other provisions of the Constitution seem to depend laws being reasonably clear. For instance, the right to a lawyer is not much help if the law is very vague. This kind of analysis shows that originalism at its best considers a provision in light of the rest of the Constitution to resolve ambiguity or uncertainty. Gorsuch also argues that this reading better comports with the separation of powers. Vague statutes allow Congress to delegate core legislative responsibilities. I would also note that judges around the time of the Framing applied separation of powers principles to help fix the meaning of constitutions, as in the Kamper v. Hawkins. This is an interpretive principle that may well have been deemed applicable to the Constitution. It would then be an original method of interpretation.