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Lawrence Solum & Max Crema: The Original Meaning of “Due Process of Law” in the Fifth Amendment
Michael Ramsey

Lawrence B. Solum (University of Virginia School of Law) & Max Crema (Georgetown J.D. '20) have posted The Original Meaning of “Due Process of Law” in the Fifth Amendment (108 Va. L. Rev. 447 (2022)) (89 pages) on SSRN.  Here is the abstract:

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.

The authors presented an earlier version of this paper at the 12th Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference held (virtually) at the University of San Diego in February 2021, with commentary by Professor Tara Grove of the University of Alabama Law School.  So at least two recent Originalism Conference papers are being published by the Virginia Law Review (this one, plus this paper by Ilan Wurman).