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The Debate about “the” Original Meaning of the Fifth Amendment’s Due Process Clause
David Weisberg

Lawrence Solum and Max Crema have engaged, on this blog, in an interesting debate with Andrew Hyman regarding the proper interpretation of the phrase “due process of law” in the Fifth Amendment.  The former hold that the original meaning of the phrase “only requires that the federal government secure the appropriate (or ‘due’) writ or precept before depriving an individual of life, liberty, or property”, while Hyman contends that the phrase “basically meant proceedings owed according to both procedural and substantive law, including writs established by law, as modified by later federal statute law and the U.S. Constitution.”  (Emphasis added.)

I want to comment on one aspect of the debate.  Solum and Crema say this about their methodology:    

To answer [the] question [how the phrase “due process of law” was understood in 1791], we analyzed more than 600 different founding-era sources.  First we used methods associated with corpus linguistic analysis to understand how founding-era Americans used the terms “process” and “process of law.”  Our results were surprising.  We found that “process” was used narrowly to mean writs (rather than more broadly to mean legal procedure) in 84% of sources.  The same was true for “process of law” in 74% of sources.  To put it plainly: when the Founding generation spoke of “process,” they meant writs.

We then examined a wide collection of colonial American documents that use the phrase “due process of law,” including colonial declarations of rights, early statutes, case reports, and legal treatises.  We once again found that most of these documents used “due process of law” to mean writs, rather than procedure.

In light of the foregoing, I think it is obvious that it cannot “plainly” or in any other way be said that, when the founding generation spoke of “process,” they meant writs.  The very results documented by Solum and Crema establish that the phrase, as used by the founding generation, was ambiguous—sometimes (most frequently) it had a relatively narrow meaning (that is, limited to procedural writs), but other times (less frequently) it had a broader meaning (encompassing both procedural writs and substantive law).  The less frequent meaning, by Solum and Crema’s own reckoning, was not anything like infinitely vanishing in frequency.  Twenty-six percent or even sixteen percent is not close to zero percent.  

Ambiguity was a feature of language in 1791, just as it is today.  If the original meaning of a phrase was ambiguous, one cannot properly determine the original meaning of the phrase by focusing on the most frequent meaning.  (What would Solum and Crema have decided if the frequency of the narrow meaning had been 51%?)  An ambiguous phrase does not have one—that is, “the”—original meaning.  That is exactly what it means for a phrase to be ambiguous.  

In sum, if we can ascertain today, in 2022, that the phrase “due process of law” was ambiguous in 1791, then it would seem very likely that learned, intelligent people would have been fully aware, in 1791, of that same ambiguity.  Indeed, it could well be the case that the framers and ratifiers in 1791 settled on that phrase precisely because they knew it to be ambiguous; they themselves might have believed that, in certain factual settings, one meaning should be applied, while in other factual settings, the other meaning should apply.  I don’t believe any analysis based on corpus linguistics could ever disprove such a hypothesis.