Max Crema & Lawrence B. Solum

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.

Introduction

There are two Due Process of Law Clauses in the United States Constitution. The first is found in the Fifth Amendment:

No person shall be . . . deprived of life, liberty, or property, without due process of law.¹ 1.U.S. Const. amend. XIV, § 1 (emphasis added).Show More

The second Due Process of Law Clause is found in Section One of the Fourteenth Amendment:

No State shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law.² 2.Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”).Show More

The conventional wisdom is that the Fifth Amendment applies only to the federal (national) government; the Fourteenth Amendment applies to the states.

This Article is about the original meaning of the Fifth Amendment Due Process of Law Clause; our findings may be relevant to the meaning of the very similar language of the Fourteenth Amendment, but they may not—the meaning of “due process of law” might have changed between 1791 and 1868.

The original meaning of the Fifth Amendment Due Process of Law Clause is surprising. The contemporary understanding of the phrase is ambiguous and contested, encompassing two distinct but related theories of its meaning. The first of these theories, the “Fair Procedures Theory,” is that “due process of law” means legal procedures that are fair (procedurally just). The fairness view is reflected in International Shoe Co. v. Washington’s idea of “fair play and substantial justice” and many other cases.³ 3.By “contemporary positive law,” we mean the law that was in effect at the time the alleged rights violation occurred.Show More

The second account of the Due Process of Law Clause, the “Legal Procedures Theory,” holds that the phrase means procedures that are required and/or permitted by positive law. This second theory comes in two variants. The first variant requires that the procedures comply with contemporary positive law⁴ 4.Justice Black articulated this view in his dissenting opinion in International Shoe,326 U.S. at 324–25 (Black, J., dissenting), and his concurrence in In re Gault, 387 U.S. 1, 62 (1967) (Black, J., concurring) (“The phrase ‘due process of law’ has through the years evolved as the successor in purpose and meaning to the words ‘law of the land’ in Magna Charta which more plainly intended to call for a trial according to the existing law of the land in effect at the time an alleged offense had been committed.”).Show More—this variant is associated with Justice Hugo Black.⁵ 5.Justice Scalia’s articulation of his view is not stated clearly and with precision. See Burnham v. Superior Ct., 495 U.S. 604, 610–11 (1990) (identifying 1868 as the crucial date for the meaning of the Due Process of Law Clause).Show More The second variant requires that the procedures comply with the positive law at the time the Fifth Amendment was framed and ratified, roughly 1791—this version of the Legal Procedures Theory is associated with Justice Antonin Scalia.⁶ 6.Process, OED Online, https://www.oed.com/view/Entry/151794 [https://perma.cc/MY5V​-Z5BL] (last visited Oct. 7, 2021).Show More None of these views are correct from an originalist perspective.

Instead, the original meaning of the Fifth Amendment Due Process of Law Clause is captured by a third theory, which we call the “Process Theory.” The phrase “due process of law” had a very precise and restricted meaning: the Clause is limited to legally required “process” in what is today a narrow and technical sense of that word.

The key to understanding the Process Theory is the word “process.” That word is ambiguous. One sense of the word “process” today is very abstract and general. In this sense, the word “process” can refer to a variety of phenomena, including chemical processes, mechanical processes, and legal procedures of any kind. This is the sense specified by the Oxford English Dictionary (“OED”) as the eighth (and most common) definition of the noun form of the word “process”:

A continuous and regular action or succession of actions occurring or performed in a definite manner, and having a particular result or outcome; a sustained operation or series of operations.⁷ 7.Id.Show More

But the word “process” has today and had in 1791 a very specific and precise meaning. We can begin to get at that meaning of process via the “b” variant of the fifth definition in the OED:

The formal commencement of any legal action; the mandate, summons, or writ by which a person or thing is brought into court for litigation.⁸ 8.3 William Blackstone, Commentaries *279 (footnote omitted).Show More

Of course, this narrow meaning is familiar to all American lawyers: this is the sense of the word “process” as it is used in the phrase “service of process.” Process is a formal document that provides a person notice of legal obligation, such as the obligation of a defendant in a civil action to appear at trial (at the risk of default for nonappearance). Process can also grant authority, such as the authority to arrest an individual or to seize their home.

The Process Theory of the meaning of the Fifth Amendment Due Process of Law Clause maintains that the Clause requires that deprivations of life, liberty, or property must be preceded by process of law in this narrow and technical legal sense. In other words, a criminal defendant may not be deprived of life or liberty without first either personal service of process or some legally valid alternative such as service by publication in a narrow category of cases. Similarly, civil defendants may not be subject to a damage award or judgment depriving them of property without legally valid process. In this sense, the Fifth Amendment Due Process of Law Clause ensures notice and jurisdiction.

There are other implications of the Clause as well. “Due process of law” encompasses “original process,” the service of process that is required by Rule 4 of the Federal Rules of Civil Procedure, but it also includes mesne and final process. Here is Blackstone’s summary:

The next step for carrying on the suit, after suing out the original, is called the process; being the means of compelling the defendant to appear in court. This is sometimes called original process, being founded upon the original writ; and also to distinguish it from mesne or intermediate process, which issues, pending the suit, upon some collateral interlocutory matter; as to summon juries, witnesses, and the like. Mesne process is also sometimes put in contradistinction to final process, or process of execution; and then it signifies all such process as intervenes between the beginning and end of a suit.⁹ 9.U.S. Const. amend. IX.Show More

The core idea of the Process Theory is that “due process of law” means legal process in the technical sense that is approximated by Blackstone’s discussion—i.e., formal documents, generally issuing from a court, that impose legal obligations or rights. Absent such process, the Clause prohibits any deprivation of certain essential rights (life, liberty, or property) by a government actor. Put another way, the Due Process of Law Clause requires that the executive secure the judiciary’s approval before depriving an individual of their rights. The Clause therefore prohibits arbitrary deprivations and furthers separation of powers principles. The Fifth Amendment’s Due Process of Law Clause does not extend to all legal procedures; for example, it does not include trial by jury, pleadings, summary judgment, discovery, and many other legal procedures that are not “process.” Nor does the Clause require that procedures be fair.

We do not mean to say that the constitutional doctrines presently derived from the Fifth Amendment Due Process of Law Clause are necessarily unsupported by the constitutional text. From an originalist perspective, there may be other constitutional provisions that are relevant. For example, even if the Clause does not specify the timing or form of hearings that must be provided by the federal government, the Sixth and Seventh Amendments guarantee a right to a jury trial. The Fifth Amendment Due Process of Law Clause would not support unenumerated rights under the rubric of “substantive due process,” but the Ninth Amendment provides that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,”¹⁰ 10.Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 Tex. L. Rev 1, 80 (2006).Show More and originalist scholars have argued that this provision does protect unenumerated rights against the federal government.¹¹ 11.59 U.S. (18 How.) 272 (1856).Show More None of these protections, however, are located in the Fifth Amendment’s Due Process of Law Clause.

In sum, starting with Murray v. Hoboken Land & Improvement Co.¹² 12.326 U.S. 310 (1945).Show More and proceeding through contemporary Fifth Amendment Due Process of Law Clause doctrine, including International Shoe,¹³ 13.424 U.S. 319 (1976).Show More Mathews v. Eldridge,¹⁴ 14.See infra Part IV.Show More and dozens of other cases, the whole corpus of due process of law doctrine is inconsistent with the original meaning of the Fifth Amendment Due Process of Law Clause. In other words, the living constitutionalist construction of the Due Process of Law Clause is inconsistent with its original meaning. So, too, are some of the most important originalist interpretations, which extend the meaning of “process” to all legal procedures.

This suggests that “due process of law” has undergone linguistic drift—its meaning has changed since the First Congress proposed it for ratification. This Article does not tell the story of how the meaning changed; instead, we are focused on the meaning as it existed in 1791, when the language of the Due Process of Law Clause was ratified. We do have important things to say about developments in the nineteenth century,¹⁵ 15.326 U.S. at 316.Show More but we will not purport to settle questions about the meaning of “due process of law” in the Fourteenth Amendment. And we do not offer an account of the emergence of the conflation of “due process” with “fair process” or the development of the Supreme Court’s substantive due process jurisprudence.

We are mindful that the Process Theory has normatively significant implications for Fifth Amendment Due Process of Law Clause doctrine. Recall that the Process Theory is limited to the Fifth Amendment and hence that its implications only extend to actions by the federal government. Examples of Fourteenth Amendment doctrines that are conventionally understood to extend to the national government include:

• The minimum contacts approach to personal jurisdiction articulated in International Shoe.¹⁶ 16.424 U.S. at 334–35.Show More
• Procedural due process doctrines that regulate the form and timing of hearings and trials, including the balancing approach of Mathews v. Eldridge.¹⁷ 17.381 U.S. 479, 484 (1965).Show More
• Substantive due process rights, including the right to privacy articulated in Griswold v. Connecticut¹⁸ 18.410 U.S. 113, 152–53 (1973).Show More and extended in Roe v. Wade¹⁹ 19.See infra text accompanying note 23.Show More to the right to choice with respect to abortion.

Because our analysis is limited to federal action, it has no direct implications for any of these decisions as they apply to state governments.

From an originalist perspective, the meaning of the Fifth Amendment Due Process of Law Clause does not depend on a normative assessment of the consequences that would flow from its original public meaning. For originalists, the role of normative assessment occurs at a more general level of analysis. Thus, originalists argue that constitutional actors should be bound by the original public meaning of all the Constitution’s provisions; originalists reject the idea that judges can amend the Constitution when they believe that good consequences would result. This idea is expressed in the Constraint Principle, which is stated below.²⁰ 20.See infra Section V.C.Show More

We recognize that living constitutionalists reject the Constraint Principle and therefore believe that the Supreme Court ought to have the power to adopt amending constructions of the Constitution in order to achieve good outcomes. That belief is not limited to the Fifth Amendment Due Process of Law Clause; it extends in principle to every constitutional provision. Nonetheless, at least some living constitutionalists may believe that the original public meaning of the constitutional text is relevant to constitutional interpretation and construction—an idea we discuss below.footnote_id_22_21

Here is the roadmap. Part I situates our project in the context of originalist constitutional theory. Part II explicates three fundamental phrases: “due process of law,” “due course of law,” and the “law of the land.” Part III provides the first half of our case for the Process Theory via an examination of the meaning of “due process of law” before the framing and ratification of the Fifth Amendment. The second half of that case is provided in Part IV, which surveys developments during and after the ratification of the Fifth Amendment. Part V addresses unanswered questions and implications of our findings. We conclude with a summary and some speculations about the consequences that might follow if judges were to pay serious attention to the original meaning of the Fifth Amendment Due Process of Law Clause.

1. U.S. Const. amend. V (emphasis added). ↑
2. U.S. Const. amend. XIV, § 1 (emphasis added). ↑
3. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”). ↑
4. By “contemporary positive law,” we mean the law that was in effect at the time the alleged rights violation occurred. ↑
5. Justice Black articulated this view in his dissenting opinion in International Shoe, 326 U.S. at 324–25 (Black, J., dissenting), and his concurrence in In re Gault, 387 U.S. 1, 62 (1967) (Black, J., concurring) (“The phrase ‘due process of law’ has through the years evolved as the successor in purpose and meaning to the words ‘law of the land’ in Magna Charta which more plainly intended to call for a trial according to the existing law of the land in effect at the time an alleged offense had been committed.”). ↑
6. Justice Scalia’s articulation of his view is not stated clearly and with precision. See Burnham v. Superior Ct., 495 U.S. 604, 610–11 (1990) (identifying 1868 as the crucial date for the meaning of the Due Process of Law Clause). ↑
7. Process, OED Online, https://www.oed.com/view/Entry/151794 [https://perma.cc/MY5V​-Z5BL] (last visited Oct. 7, 2021). ↑
8. Id. ↑
9. 3 William Blackstone, Commentaries *279 (footnote omitted). ↑
10. U.S. Const. amend. IX. ↑
11. Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 Tex. L. Rev 1, 80 (2006). ↑
12. 59 U.S. (18 How.) 272 (1856). ↑
13. 326 U.S. 310 (1945). ↑
14. 424 U.S. 319 (1976). ↑
15. See infra Part IV. ↑
16. 326 U.S. at 316. ↑
17. 424 U.S. at 334–35. ↑
18. 381 U.S. 479, 484 (1965). ↑
19. 410 U.S. 113, 152–53 (1973). ↑
20. See infra text accompanying note 23. ↑

21. See infra Section V.C. ↑