Issue 2

Property against Legality: Takings after Cedar Point

In the American constitutional tradition, a zealous judicial defense of property is closely aligned with the idea of “the rule of law.” Conventional wisdom holds that the Takings Clause of the Fifth Amendment vindicates both property rights and the rule of law by foreclosing arbitrary, lawless state action. But the standard story linking property rights, legality, and a constraint on arbitrary governance is more commonly stipulated than analyzed. This Article uses an apparent sharp break in takings jurisprudence, the United States Supreme Court’s June 2021 decision in Cedar Point Nursery v. Hassid, to closely scrutinize the relationship between legality and property rights. To that end, it offers first a careful analysis of the sharp rupture that Cedar Point makes in takings jurisprudence. Not only is the Court’s result difficult to explain in terms of precedent or traditional legal methods, it also destabilizes a previously settled and reasonably predictable litigation landscape. As a result, it seeds profound uncertainty on the legal ground because it signals a dissolution of the constraining effect formerly realized by standard tools of legal reasoning. There is, further, no obvious way for the Court to restore stability and predictability to the doctrine without drawing new, arbitrary lines. In consequence, takings law will likely abide in confusion, not certainty, for the foreseeable future. Cedar Point’s vindication of property rights hence comes at the paradoxical cost of dramatically increasing the space for decisions unguided by law by one group of officials in the judiciary.

A close reading of Cedar Point invites a more general and abstract analysis of the complex, nuanced relationship between the rule of law and property rights. Drawing on the general jurisprudential theories of H.L.A. Hart and other legal positivists, I use the decision as a launching point for a larger exploration of ways in which the rule of law can be incompletely realized to paradoxical and even socially harmful effect. Placing property at the center of the rule of law, I suggest, can be consistent with, or even an incitement to, serious derogation of the rule of law. Doing so can undermine rule-of-law goals, such as constraining arbitrary rule. This suggests a need to decenter property rights in accounts of the rule of law, and to explore, in more nuanced and grounded fashion, how the practice of judicial review mediates systemic values of legality and predictability. In short, if we value the rule of law, it may in general be appropriate to take a more skeptical, and so more contingent, view of both property as a legal institution, and also the courts as a source of legality and stability.

Introduction

Property and its zealous defense are closely associated with the rule of law in the American constitutional tradition. A “total, arbitrary, and capricious power” is conceived as the enemy of both.1 1.Kenneth R. Minogue, The Concept of Property and Its Contemporary Significance, in NomosXXII: Property 3, 5 (J. Roland Pennock & John W. Chapman eds., 1980).Show More In Federalist 70, Alexander Hamilton thus termed the constitutional “protection of property against those irregular and high handed combinations, which sometimes interrupt the ordinary course of justice.”2 2.The Federalist No. 70, at 471 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).Show More Writing just after the Constitution’s ratification, James Madison warned that “just government” and “secure” property are imperiled by “arbitrary restrictions, exemptions, and monopolies [that] deny to part of its citizens that free use of their faculties . . . which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.”3 3.James Madison, Property, Nat’l Gazette, Mar. 27, 1792, reprinted in 14 The Papers of James Madison 266, 267 (Robert A. Rutland et al. eds., 1983).Show More John Adams agreed. He opined that “[p]roperty must be secured, or liberty cannot exist.”4 4.Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (quoting John Adams, Discourses on Davila, in 6 The Works of John Adams 223, 280 (Charles Francis Adams ed., 1851)).Show More In a leading constitutional treatise of the early Republic, St. George Tucker also identified the Takings Clause of the Fifth Amendment as a means “to restrain the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses.”5 5.St. George Tucker, 1 Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, app. at 305–06 (Augustus M. Kelley 1969) (1803); see also Armstrong v. United States, 364 U.S. 40, 49 (1960) (describing the Clause’s aim as preventing the government “from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole”).Show More The U.S. Supreme Court concurs. Citing Madison, Adams, and others, the Justices have posited that enforcement of the Takings Clause “empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.”6 6.Murrv.Wisconsin, 137 S. Ct. 1933, 1943 (2017); Cedar Point, 141 S. Ct. at 2071 (quoting Murr, 137 S. Ct. at 1943); see also Sveen v. Melin, 138 S. Ct. 1815, 1827 (2018) (Gorsuch, J., dissenting) (“Federalists like Madison countered that the rule of law permitted ‘property rights and liberty interests [to] be dissolved only by prospective laws of general applicability.’” (citation omitted)). The same theme is found in academic literature. See Richard A. Epstein, Design for Liberty: Private Property, Public Administration, and the Rule of Law 12 (2011) (describing a “close connection” between property’s protection and the rule of law); James W. Ely, Jr., Property Rights and Judicial Activism, 1 Geo. J.L. & Pub. Pol’y 125, 126 (2002) (“The Framers realized that robust protection of the rights of property owners undergirds liberty by diffusing power and protecting individual autonomy from governmental control.”).Show More Judicial protection of property rights serves the rule of law, on this account, by making state action predictable, by restraining arbitrary uses of state power, and by empowering citizens and others to chart their own “destinies” free of government control.

In this way, the idea of the rule of law, albeit not mentioned explicitly in the Constitution, has become “central to our political and rhetorical traditions, possibly even to our sense of national identity.”7 7.Richard H. Fallon, Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 3 (1997).Show More Scholars keenly debate what the rule of law—which is also sometimes called the principle of legality8 8.See, e.g., Lon L. Fuller, The Morality of Law 44 (rev. ed. 1969) (using the phrase “the demands of legality” to capture the rule of law).Show More—requires.9 9.Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, 21 Law & Phil. 137, 140–44 (2002) (surveying disputes over its meaning).Show More But a kernel of common ground is apparent: the rule of law is commonly defined as the law’s clarity, stability, and predictability.10 10.Fuller, supra note 8, at 39 (listing traits of the rule of law, including clarity and the capacity to be followed).Show More These qualities foster “confidence about the legal consequences of their actions.”11 11.Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994); see also Lawrence B. Solum, Equity and the Rule of Law, in Nomos XXXVI: The Rule of Law 120, 121 (Ian Shapiro ed., 1994) (including “generality, publicity, and regularity” among the rule of law’s features).Show More In contrast, state actions animated by “caprice, passion, bias, [or] prejudice” are all “antithetical to the rule of law.”12 12.TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 475 (1993) (O’Connor, J., dissenting). The association of the rule of law with the constraint of official action goes back to a Victorian legal theorist who was one of the early adopters of the term “rule of law.” A.V. Dicey, Introduction to the Study of the Law of the Constitution 181–205 (10th ed. 1959).Show More As such, they cannot be ranked as properly legalistic state action. Such improper—but not, note well, ipso facto illegal—species of official action are impossible if those with official power “exercise their power within a constraining framework of public norms, rather than on the basis of their own preferences, their own ideology, or their own individual sense of right and wrong.”13 13.Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 6 (2008) [hereinafter Waldron, The Concept and the Rule].Show More Clear, predictable, and stable law binds officials at the same time that it guides citizens. Indeed, the two guidance functions are entwined. An official’s “arbitrary” exercise of power is not just the rule of law’s antipode.14 14.Joseph Raz, The Rule of Law and its Virtue, in The Authority of Law: Essays on Law and Morality 210, 224 (1979) [hereinafter Raz, Rule of Law and its Virtue] (“The law inevitably creates a great danger of arbitrary power—the rule of law is designed to minimize the danger created by the law itself.”).Show More It is also the antithesis of individual liberty.15 15.The kind of liberty protected by the rule of law is, again, contested and plural. See Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory 34–35 (2004) (distinguishing four kinds of freedom protected by the rule of law). The most relevant here are the freedom from unlicensed (and so unpredictable) legal constraint, and the preservation of a zone of personal autonomy. Id.Show More And so, in this standard narrative, there is a profound complementarity between the rule of law, property rights, and liberty.16 16.Some accounts go further and suggest that it is the propertied who will have the leisure and the resources to defend rule of laws. Minogue, supra note 1, at 8.Show More

This Article interrogates this standard account of how property rights and the rule of law relate to each other in American constitutional law. Its point of departure is a 2021 Supreme Court opinion about the constitutional status of property rights. That judgment is important in its own right. It changes, potentially quite dramatically, the scope of constitutional protection for real property under the Takings Clause of the Fifth Amendment.17 17.See U.S. Const. amend. V (stating that “private property [shall not] be taken for public use, without just compensation”).Show More Whatever its exact effects on the ground (literally!) may be, it certainly marks a sea change in Fifth Amendment jurisprudence.

Cedar Point Nursery v. Hassid18 18.141 S. Ct. 2063 (2021).Show More held that a 1976 California “take access” regulation permitting union organizers to approach and talk to agricultural workers was a taking requiring compensation under the Fifth Amendment.19 19.Cal. Code Regs. tit. 8, § 20900(e)(3) (2021); see also Cedar Point, 141 S. Ct. at 2069, 2072 (describing regulatory framework for agricultural labor under California law).Show More Part of a larger constitutional transformation sweeping over the separation of powers, the Religion Clauses, and abortion jurisprudence during the Roberts Court, Cedar Point has received less attention than other recent doctrinal convulsions. This neglect is unjustified.

A first contribution of this Article is to explore the possibility that the decision prefigures a dramatic and destabilizing shift in the nature of constitutional property. The legal uncertainty unleashed by that opinion is not likely to abate given the absence of any stable limit on the Court’s apparent reworking of the concept of constitutional property. Of larger theoretical significance, Cedar Point illustrates one way in which property rights and the rule of law can diverge, notwithstanding the standard story, to enlarge the scope for arbitrary state action. Hence, it invites the Article’s second, more theoretical contribution—a nuanced and careful theorization of property’s complex, many-stranded relation to the rule of law.

My analysis begins with the particulars of Cedar Point. The decision’s immediate effect, of course, was to change the terms for the increasingly beleaguered organized labor movement in one of the nation’s most important and fertile agricultural breadbaskets. Its longer-term, more abstract consequence was its implicit invitation for the future reworking of takings doctrine. In particular, the 2021 decision unraveled a central organizing conceit of takings jurisprudence. The latter has stabilized and channeled potential litigants’ expectations for decades. By diminishing the predictive value of precedent respecting property’s boundaries, the Court created uncertainty where property owners and officials previously had benefited from stable expectations.

Prior to Cedar Point, owners and officials got a reasonably clear sense of litigation outcomes by asking whether a state action was an “appropriation” or “regulation” as those words are used in everyday conversation. Under longstanding doctrine, legal challenges to appropriations generally prevailed under a “per se” rule. In contrast, the balancing test applicable to regulations typically, albeit far from inevitably, tilted in favor of the government. Distinguishing appropriations from regulations, moreover, was relatively straightforward when it came to real and chattel property. If the government indefinitely deprived you of the whole or part of the physical thing, you could typically expect to win a takings case.

To be sure, the doctrine elsewhere had other wrinkles. But in the vast majority of cases, these mattered only on 1L property exams and (very occasionally) in appellate litigation. The ensuing doctrine was relatively transparent, even to lay people unburdened by the intellectual pretensions of a legal education.

The Court in Cedar Point did not openly abandon the distinction between appropriations and regulations. More perplexingly, it invoked that distinction while refusing to deploy the ordinary meaning of an “appropriation.” While the verbal formulation of the law remained the same, a key doctrinal term with a clear and predictable lay meaning was replaced with an amorphous category of uncertain and unpredictable application. Legal and ordinary language hence parted company. By diminishing the clarifying force of doctrine, the Court created uncertainty where property owners and officials previously had reasonably stable expectations. This is one way in which Cedar Point revealed a tension between property rights and the clarity, stability, and predictability ambitions of the rule of law. Protecting the first can diminish the latter.

Another tension underlying the majority’s reasoning can be discerned by attending to its methodological choices: the Cedar Point Court ostentatiously relied on dictionaries, ordinary public meaning, and the binding force of precedent. But read closely, each of these argumentative threads unravel. Dictionary definitions were selectively picked; actual lay usage was ignored; and precedent was invoked only via selective quotation—distorting earlier constitutional holdings. In execution, therefore, Cedar Point’s vindication of property rights stood at odds with the application of familiar legal methods central to the rule of law.20 20.See Andrei Marmor, The Rule of Law and Its Limits, 23 Law & Phil. 1, 3 (2004).Show More Nor does the decision promise future clarity or stability.

Worse, Cedar Point did not ask or answer a crucial question: What distinguishes an impermissible “appropriation” from a “regulation” under the Takings Clause? The majority opinion offers hints. But none of these hold promise as a principled basis on which to draw a line between regulation and appropriation. Indeed, the ultimate, long-term effect of Cedar Point may well be to collapse the longstanding distinction between appropriations and regulations—a legal regime where most government action would be evaluated as an appropriation, even if it did not entail a physical invasion by the government. This doctrine’s end-state would dramatically expand judicial discretion, work avulsive change to the authority of state and local governments, and (ironically) foster fresh uncertainty about the resolution of inevitable and pervasive boundary disputes that arise in property law.

There is a bigger principle at stake here too. This close reading of Cedar Point further invites reappraisal of the way in which property and the rule of law have been theorized as working together in American constitutional law: Do they really intertwine as tightly as the standard story holds? A starting point for this analytic enterprise is a distinction drawn by the legal theorists H.L.A. Hart and Meir Dan-Cohen. Hart carved law up into “primary” rules applicable to the citizenry at large, and “secondary” rules that bind officials.21 21.H.L.A. Hart, The Concept of Law 99 (Penelope A. Bulloch & Joseph Raz postscript eds., 2d ed. 1994) [hereinafter Hart, Concept of Law] (“The union of primary and secondary rules is at the centre of a legal system . . . .”).Show More Dan-Cohen, reasoning in a similar vein, distinguished “conduct rules” covering everyone, and “decision rules” directed at officials.22 22.Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 627 (1984).Show More The law, both Hart and Dan-Cohen thereby insisted, speaks in subtly differently accented voices to the public and to its official custodians.

Cedar Point illustrates the possibility that the rule of law can come apart along this seam. The ordinary subjects of property law remain subject to a body of (somewhat more ambiguous) rules after Cedar Point, even as the Court shrugs off the disciplining constraints imposed by legal method. The rule of law can thus be roughly maintained for primary rules of property, even as it dissipates as a constraint upon officials. As such, we can observe what I call “first-order legality” for rules applicable to private persons, without the “second-order legality” usually experienced by officials. This dichotomy, and the resulting internal fracturing, complicates canonical accounts of the rule of law by showing how it is possible for the qualities of certainty, predictability, and stability to be maintained with respect to one domain of the law, but not another. Consequently, legality can be partial. At worst, it can potentially come to be at war with itself.

With this bifurcated account of the rule of law in hand, it is possible to interrogate in a more considered way the supposedly monotonic relationships between legality, arbitrary rule, and the ambition of legality. The rule of law, at least in one of its traditions, is often distilled into an image of rigid, impenetrable property rights.23 23.See sources cited supra notes 2–5.Show More These, in turn, are hitched to the aspiration for freedom from arbitrary rule and economic growth. But even as Cedar Point offered an account of property as a cornerstone of the rule of law in precisely these terms, each element of this argument was unraveling. No longer is it clear that centering legality around property minimizes the scope for arbitrary decision making by officials. To the contrary, an account of the rule of law centered around property rights may either increase or decrease the risk of such arbitrary rule without a clear effect on economic growth or social welfare. Legality, when conceptualized in terms of property rights, thus can undermine widely shared normative goals it purports to advance. Their relation is contingent, not necessary.

This Article focuses on the relationship of takings jurisprudence to the rule of law. Existing commentary criticizes Cedar Point’s “hostility to worker power” and “antidemocracy” effects,24 24.Nikolas Bowie, Comment, Antidemocracy, 135 Harv. L. Rev. 160, 163 (2021). For a similar, if more equivocal, suggestion, see Cristina M. Rodríguez, Foreword: Regime Change, 135 Harv. L. Rev. 2, 32 (2021) (“[T]he Supreme Court’s burgeoning jurisprudence . . . has turned to the Bill of Rights, primarily the First Amendment, to limit social welfare and good-government regulation . . . .”); see also Linda Greenhouse, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court 224 (2021) (describing the case as a “potentially transformational development in the law of property rights . . . likely to hobble government land use regulation”). For a contrary view, see Julia D. Mahoney, Cedar Point Nursery and the End of the New Deal Settlement, 11 Brigham-Kanner Prop. Rts. J. 43, 64 (2022) (arguing that “Cedar Point represents an evolution, not a revolution, in the Court’s property rights jurisprudence” while celebrating the Court’s result and analysis). As it will become clear, I respectfully disagree with Professor Mahoney’s conclusions for reasons spelled out at length in this Article.Show More or alternatively defends its “classical liberal” pedigree.25 25.Sam Spiegelman & Gregory C. Sisk, Cedar Point: Lockean Property and the Search for a Lost Liberalism, 2020–21 Cato Sup. Ct. Rev. 165, 178–81 (2021) (talking of “the takings muddle”).Show More In contrast, I explore the Court’s new takings doctrine in relation to the ideal of the rule of law.26 26.Cf. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (“As John Adams tersely put it, ‘[p]roperty must be secured, or liberty cannot exist.’” (citation omitted)).Show More The property/rule of law connection has been previously explored in a set of lectures by Professor Jeremy Waldron. He, however, trains on the relation of Lockean accounts of property to the rule of law though a political philosophy lens.27 27.Jeremy Waldron, The Rule of Law and the Measure of Property 27 (2012) [hereinafter Waldron, Measure of Property] (doubting that “Locke’s account” of property yields a specific definition of the rule of law).Show More My analysis and conclusions unfold along a different, American-constitutional-law track. Nevertheless, like Waldron, I hope to contribute to larger theoretical debates about the rule of law and its constituent parts.

Part I explores the basic architecture of takings doctrine prior to Cedar Point. Part II then offers a close reading of that decision. I carefully analyze its methodological underpinnings and doctrinal aftermath. Both in its origin and in its reasoning, I demonstrate, the opinion is in sharp tension with legality norms. Part III then broadens the analytic lens to evaluate the role that property plays in understandings of the rule of law. Using Cedar Point as an opening wedge for inquiry, it demonstrates how legality can unravel in ways that foster arbitrary rule and undermine economic growth. Of course, these are precisely the outcomes the rule of law is intended to stave off.

  1.  Kenneth R. Minogue, The Concept of Property and Its Contemporary Significance, in Nomos XXII: Property 3, 5 (J. Roland Pennock & John W. Chapman eds., 1980). ↑
  2. The Federalist No. 70, at 471 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). ↑
  3. James Madison, Property, Nat’l Gazette, Mar. 27, 1792, reprinted in 14 The Papers of James Madison 266, 267 (Robert A. Rutland et al. eds., 1983). ↑
  4.  Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (quoting John Adams, Discourses on Davila, in 6 The Works of John Adams 223, 280 (Charles Francis Adams ed., 1851)). ↑
  5.  St. George Tucker, 1 Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, app. at 305–06 (Augustus M. Kelley 1969) (1803); see also Armstrong v. United States, 364 U.S. 40, 49 (1960) (describing the Clause’s aim as preventing the government “from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole”). ↑
  6. Murr v. Wisconsin, 137 S. Ct. 1933, 1943 (2017); Cedar Point, 141 S. Ct. at 2071 (quoting Murr, 137 S. Ct. at 1943); see also Sveen v. Melin, 138 S. Ct. 1815, 1827 (2018) (Gorsuch, J., dissenting) (“Federalists like Madison countered that the rule of law permitted ‘property rights and liberty interests [to] be dissolved only by prospective laws of general applicability.’” (citation omitted)). The same theme is found in academic literature. See Richard A. Epstein, Design for Liberty: Private Property, Public Administration, and the Rule of Law 12 (2011) (describing a “close connection” between property’s protection and the rule of law); James W. Ely, Jr., Property Rights and Judicial Activism, 1 Geo. J.L. & Pub. Pol’y 125, 126 (2002) (“The Framers realized that robust protection of the rights of property owners undergirds liberty by diffusing power and protecting individual autonomy from governmental control.”). ↑
  7. Richard H. Fallon, Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 3 (1997). ↑
  8. See, e.g., Lon L. Fuller, The Morality of Law 44 (rev. ed. 1969) (using the phrase “the demands of legality” to capture the rule of law). ↑
  9. Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, 21 Law & Phil. 137, 140–44 (2002) (surveying disputes over its meaning). ↑
  10. Fuller, supra note 8, at 39 (listing traits of the rule of law, including clarity and the capacity to be followed). ↑
  11. Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994); see also Lawrence B. Solum, Equity and the Rule of Law, in Nomos XXXVI: The Rule of Law 120, 121 (Ian Shapiro ed., 1994) (including “generality, publicity, and regularity” among the rule of law’s features). ↑
  12.  TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 475 (1993) (O’Connor, J., dissenting). The association of the rule of law with the constraint of official action goes back to a Victorian legal theorist who was one of the early adopters of the term “rule of law.” A.V. Dicey, Introduction to the Study of the Law of the Constitution 181–205 (10th ed. 1959). ↑
  13. Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 6 (2008) [hereinafter Waldron, The Concept and the Rule]. ↑
  14. Joseph Raz, The Rule of Law and its Virtue, in The Authority of Law: Essays on Law and Morality 210, 224 (1979) [hereinafter Raz, Rule of Law and its Virtue] (“The law inevitably creates a great danger of arbitrary power—the rule of law is designed to minimize the danger created by the law itself.”). ↑
  15. The kind of liberty protected by the rule of law is, again, contested and plural. See Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory 34–35 (2004) (distinguishing four kinds of freedom protected by the rule of law). The most relevant here are the freedom from unlicensed (and so unpredictable) legal constraint, and the preservation of a zone of personal autonomy. Id. ↑
  16. Some accounts go further and suggest that it is the propertied who will have the leisure and the resources to defend rule of laws. Minogue, supra note 1, at 8. ↑
  17. See U.S. Const. amend. V (stating that “private property [shall not] be taken for public use, without just compensation”). ↑
  18. 141 S. Ct. 2063 (2021). ↑
  19. Cal. Code Regs. tit. 8, § 20900(e)(3) (2021); see also Cedar Point, 141 S. Ct. at 2069, 2072 (describing regulatory framework for agricultural labor under California law). ↑
  20. See Andrei Marmor, The Rule of Law and Its Limits, 23 Law & Phil. 1, 3 (2004). ↑
  21. H.L.A. Hart, The Concept of Law 99 (Penelope A. Bulloch & Joseph Raz postscript eds., 2d ed. 1994) [hereinafter Hart, Concept of Law] (“The union of primary and secondary rules is at the centre of a legal system . . . .”). ↑
  22. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 627 (1984). ↑
  23. See sources cited supra notes 2–5. ↑
  24. Nikolas Bowie, Comment, Antidemocracy, 135 Harv. L. Rev. 160, 163 (2021). For a similar, if more equivocal, suggestion, see Cristina M. Rodríguez, Foreword: Regime Change, 135 Harv. L. Rev. 2, 32 (2021) (“[T]he Supreme Court’s burgeoning jurisprudence . . . has turned to the Bill of Rights, primarily the First Amendment, to limit social welfare and good-government regulation . . . .”); see also Linda Greenhouse, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court 224 (2021) (describing the case as a “potentially transformational development in the law of property rights . . . likely to hobble government land use regulation”). For a contrary view, see Julia D. Mahoney, Cedar Point Nursery and the End of the New Deal Settlement, 11 Brigham-Kanner Prop. Rts. J. 43, 64 (2022) (arguing that “Cedar Point represents an evolution, not a revolution, in the Court’s property rights jurisprudence” while celebrating the Court’s result and analysis). As it will become clear, I respectfully disagree with Professor Mahoney’s conclusions for reasons spelled out at length in this Article. ↑
  25. Sam Spiegelman & Gregory C. Sisk, Cedar Point: Lockean Property and the Search for a Lost Liberalism, 2020–21 Cato Sup. Ct. Rev. 165, 178–81 (2021) (talking of “the takings muddle”). ↑
  26. Cf. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (“As John Adams tersely put it, ‘[p]roperty must be secured, or liberty cannot exist.’” (citation omitted)). ↑

  27. Jeremy Waldron, The Rule of Law and the Measure of Property 27 (2012) [hereinafter Waldron, Measure of Property] (doubting that “Locke’s account” of property yields a specific definition of the rule of law). ↑

Proving Causation in Clinical Research Negligence

Investigators conducting clinical research create a risk of harm to their human subjects. The common law recognizes a variety of duties that these investigators owe to their subjects. When they breach these duties, such as by negligently designing the study or failing to obtain informed consent, subjects who experience a negative outcome relative to not having participated in the study should be able to maintain a cause of action for negligence against the investigators.

Yet when researchers are negligent, it will often be impossible to show whether the study caused any individual subject’s injuries. The infamous SUPPORT study, in which researchers should have reasonably foreseen that they were exposing randomly selected infants to a higher risk of death, is one example. As the subsequent litigation over that study showed, traditional principles of causation operate to make it difficult or impossible for research subjects to pursue such claims against investigators. This is because the factual circumstances of most clinical research preclude individual plaintiffs from being able to show that their injuries were more-likely-than-not caused by their participation in the study.

The loss of chance doctrine developed in medical malpractice suits provides one potential solution for overcoming this causation problem. An even better solution, which provides optimal deterrence and as-good-as-possible compensation for injured subjects, would be for courts to adopt a theory of “marginal causation,” which permits proof of causation by the aggregate marginal damages suffered by plaintiffs as a group, as an extension of the existing doctrines of loss of chance and alternative liability.

Introduction

Human-subjects research is vital for advancing scientific and medical knowledge. In particular, the development of new drugs relies on studies carried out on human volunteers. The COVID-19 pandemic and the corresponding race to develop a vaccine have placed the risks and rewards of medical research in the spotlight.1 1.See, e.g., Carl Zimmer, Jonathan Corum & Sui-Lee Wee, Coronavirus Vaccine Tracker, N.Y. Times, https://www.nytimes.com/interactive/2020/science/coronavirus-vaccine-tracker.​html[https://perma.cc/MTG4-6P9H] (last visited Oct. 20, 2020).Show More While there is much concern about the safety of potential vaccines for the public,2 2.Katie Thomas, Experts Tell FDA It Should Gather More Safety Data on Covid-19 Vaccines, N.Y. Times (Nov. 9, 2020), https://www.nytimes.com/2020/10/22/health/covid-vaccine-fda-advisory-committee.html [https://perma.cc/A8AY-SFJE].Show More scant attention has been placed on the risks to participants in the preclinical trials, which include tens of thousands of volunteers.3 3.William A. Haseltine, The Risks of Rushing a COVID-19 Vaccine, Sci. Am. (June 22, 2020), https://www.scientificamerican.com/article/the-risks-of-rushing-a-covid-19-vaccine/ [https://perma.cc/QG6D-P26G].Show More Indeed, three COVID-19-vaccine clinical trials were halted due to safety concerns.4 4.Carl Zimmer, 3 Covid-19 Trials Have Been Paused for Safety. That’s a Good Thing., N.Y. Times (Nov. 23, 2020), https://www.nytimes.com/2020/10/14/health/covid-clinical-trials.htm​l [https://perma.cc/J377-L62Z].Show More Although nothing suggests that these studies have deviated from appropriate ethical standards,5 5.Id. Monitoring and reacting appropriately to adverse events are part of routine clinical research. SeeFDA, Guidance for Clinical Investigators, Sponsors, and IRBs: Adverse Event Reporting to IRBs—Improving Human Subject Protection 3–6 (2009), https://www.fda.gov/​media/72267/download [https://perma.cc/AE2L-ANDA].Show More the demand for a speedy solution and the prospect of financial reward create complicated ethical pressures.6 6.U.S. Dep’t Health & Hum. Servs., Explaining Operational Warp Speed (2020), https://www.nihb.org/covid-19/wp-content/uploads/2020/08/Fact-sheet-operation-warp-spee​d.pdf [https://perma.cc/94NK-MVJL]; Emily A. Wang, Jonathan Zenilman & Lauren Brinkley-Rubinstein, Ethical Considerations for COVID-19 Vaccine Trials in Correctional Facilities, 324 JAMA 1031 (2020); Euzebiusz Jamrozik & Michael J. Selgelid, COVID-19 Human Challenge Studies: Ethical Issues, 20 Lancet Infectious Diseases e198, e199–e202 (2020).Show More Besides these highly publicized Phase 3 trials, the National Institutes of Health (“NIH”) reports that there are currently 947 studies conducting human-subjects research on COVID-19.7 7.ClinicalTrials.gov, https://clinicaltrials.gov/ct2/results?cntry=US&Search=Apply&recrs=‌a&recrs=f&recrs=d&age%20_v=&gndr=&type=&rslt= [https://perma.cc/RC4E-CTK8] (last visited Oct. 1, 2021) (selecting “COVID-19” for “Condition or disease,” “United States” for “Country” and “Recruiting,” “Enrolling by invitation,” and “Active, not recruiting” from “Status”).Show More

Beyond COVID-19, NIH reports that there are 34,907 studies involving human subjects that are recruiting, enrolling, or active in the United States.8 8.ClinicalTrials.gov, https://clinicaltrials.gov/ct2/results?cntry=US&Search=Apply&recrs=‌a&recrs=f&recrs=d&age%20_v=&gndr=&type=&rslt= [https://perma.cc/XR6G-GPFA] (last visited Oct. 1, 2021) (selecting “United States” for “Country” and “Recruiting,” “Enrolling by invitation,” and “Active, not recruiting” from “Status”).Show More If carried out correctly, these studies, on COVID-19 or otherwise, will advance the collective knowledge of society, increase the quality of medical treatment, and save lives. But these studies also risk treating their human subjects as merely a means to a scientific end.9 9.Immanuel Kant, Groundwork for the Metaphysics of Morals 46–47 (Allen W. Wood ed. & trans., Yale Univ. Press 2002) (1785) (“The practical imperative will thus be the following: Act so that you use humanity, as much in your own person as in the person of every other, always at the same time as end and never merely as means.”).Show More An ethical violation of this nature is particularly insidious in the context of medical research, where subjects often place their trust in medical professionals. Yet clinical research differs from medical treatment because medical professionals conducting research are not acting for the benefit of any specific patient, but rather are attempting to generate scientific knowledge. Any benefit to a specific subject is incidental.10 10.See infraSection II.A.Show More

The history of medical research in the United States, including the forty-year failure of the Tuskegee Syphilis Study to obtain consent from, inform, or treat nearly 400 Black men infected with syphilis11 11.CDC, The Tuskegee Timeline, https://www.cdc.gov/tuskegee/timeline.htm [https://perm​a.cc/422Y-SUUX] (last visited Nov. 19, 2019).Show More shows that investigators in this country are capable of reprehensible research.12 12.Frederick Adams, ForewordtoVivien Spitz, Doctors from Hell: The Horrific Account of Nazi Experiments on Humans, at xv, xv–xxvii (2005).Show More Tort law ought to provide a safeguard against such ethical failures. But it fails to do so because satisfying the traditional requirements of causation is impossible for most clinical research. The loss of chance doctrine, familiar in the medical malpractice context, should be accepted as a means of satisfying causation in clinical research cases. The best way for tort law to address clinical research harms is to extend the canonical Summers v. Tice doctrine of alternative liability to loss of chance.13 13.33 Cal. 2d 80 (1948).Show More This Note calls this proposed approach “marginal causation.”

In Part I, this Note discusses the Surfactant, Positive Pressure, and Pulse Oximetry Randomized Trial Study (“SUPPORT study”), which is a salient instance of possible clinical research negligence. There are good reasons to believe that this study was negligent in its informed consent process and in its design. Yet institutional review boards approved the study and investigators conducted it. While negligence for the research was litigated in Looney v. Moore, the application of Alabama’s traditional causation doctrine by the trial and appellate courts prevented the plaintiff-subjects from even reaching a jury.14 14.18 F. Supp. 3d 1338 (N.D. Ala. 2014), aff’d, 886 F.3d 1058 (11th Cir. 2018).Show More

As Part II describes, there is a sufficient foundation existing in the common law for the courts of most jurisdictions to find that legal duties exist between investigators and subjects in clinical research and that their breach is legally cognizable. Nonetheless, the particular factual circumstances of clinical research preclude subjects from proving causation under traditional negligence doctrine. Investigators’ conduct itself shields them from liability when they negligently conduct their research on human subjects.

Part III explores a potential solution to the failure of traditional doctrine to address clinical research harms in the doctrine of loss of chance, which courts have developed in the face of similar challenges for plaintiffs in medical malpractice actions. It also discusses how the law of mass exposure torts provides a parallel for clinical research negligence. This Part concludes by suggesting that the factual circumstances of clinical research are best met through an extension of the canonical Summers v. Tice doctrine of alternative liability from defendants to plaintiffs. The theory, which this Note terms “marginal causation,” proposes that when a class of vulnerable plaintiffs can show that it collectively suffered a marginal aggregate injury because of a defendant’s conduct, common law courts should permit individual injured plaintiffs to recover for the likelihood that their injuries were actually caused by the defendant’s conduct.

  1. See, e.g., Carl Zimmer, Jonathan Corum & Sui-Lee Wee, Coronavirus Vaccine Tracker, N.Y. Times, https://www.nytimes.com/interactive/2020/science/coronavirus-vaccine-tracker.​html
    [

    https://perma.cc/MTG4-6P9H] (last visited Oct. 20, 2020). ↑

  2. Katie Thomas, Experts Tell FDA It Should Gather More Safety Data on Covid-19 Vaccines, N.Y. Times (Nov. 9, 2020), https://www.nytimes.com/2020/10/22/health/covid-vaccine-fda-advisory-committee.html [https://perma.cc/A8AY-SFJE]. ↑
  3. William A. Haseltine, The Risks of Rushing a COVID-19 Vaccine, Sci. Am
    .

    (June 22, 2020), https://www.scientificamerican.com/article/the-risks-of-rushing-a-covid-19-vaccine/ [https://perma.cc/QG6D-P26G]. ↑

  4. Carl Zimmer, 3 Covid-19 Trials Have Been Paused for Safety. That’s a Good Thing., N.Y. Times (Nov. 23, 2020), https://www.nytimes.com/2020/10/14/health/covid-clinical-trials.htm​l [https://perma.cc/J377-L62Z]. ↑
  5. Id. Monitoring and reacting appropriately to adverse events are part of routine clinical research. See FDA, Guidance for Clinical Investigators, Sponsors, and IRBs: Adverse Event Reporting to IRBs—Improving Human Subject Protection 3–6 (2009), https://www.fda.gov/​media/72267/download [https://perma.cc/AE2L-ANDA]. ↑
  6. U.S. Dep’t Health & Hum. Servs., Explaining Operational Warp Speed (2020), https://www.nihb.org/covid-19/wp-content/uploads/2020/08/Fact-sheet-operation-warp-spee​d.pdf [https://perma.cc/94NK-MVJL]; Emily A. Wang, Jonathan Zenilman & Lauren Brinkley-Rubinstein, Ethical Considerations for COVID-19 Vaccine Trials in Correctional Facilities, 324
    JAMA 1031

    (2020); Euzebiusz Jamrozik & Michael J. Selgelid, COVID-19 Human Challenge Studies: Ethical Issues, 20 Lancet Infectious Diseases e198, e199–e202 (2020). ↑

  7. ClinicalTrials.gov, https://clinicaltrials.gov/ct2/results?cntry=US&Search=Apply&recrs=‌a&recrs=f&recrs=d&age%20_v=&gndr=&type=&rslt= [https://perma.cc/RC4E-CTK8] (last visited Oct. 1, 2021) (selecting “COVID-19” for “Condition or disease,” “United States” for “Country” and “Recruiting,” “Enrolling by invitation,” and “Active, not recruiting” from “Status”). ↑
  8. ClinicalTrials.gov, https://clinicaltrials.gov/ct2/results?cntry=US&Search=Apply&recrs=‌a&recrs=f&recrs=d&age%20_v=&gndr=&type=&rslt= [https://perma.cc/XR6G-GPFA] (last visited Oct. 1, 2021) (selecting “United States” for “Country” and “Recruiting,” “Enrolling by invitation,” and “Active, not recruiting” from “Status”). ↑
  9. Immanuel Kant, Groundwork for the Metaphysics of Morals 46–47 (Allen W. Wood ed. & trans., Yale Univ. Press 2002) (1785) (“The practical imperative will thus be the following: Act so that you use humanity, as much in your own person as in the person of every other, always at the same time as end and never merely as means.”). ↑
  10. See infra Section II.A. ↑
  11.  CDC, The Tuskegee Timeline, https://www.cdc.gov/tuskegee/timeline.htm [https://perm​a.cc/422Y-SUUX] (last visited Nov. 19, 2019). ↑
  12. Frederick Adams, Foreword to Vivien Spitz, Doctors from Hell: The Horrific Account of Nazi Experiments on Humans, at xv, xv–xxvii (2005). ↑
  13. 33 Cal. 2d 80 (1948). ↑

  14. 18 F. Supp. 3d 1338 (N.D. Ala. 2014), aff’d, 886 F.3d 1058 (11th Cir. 2018). ↑

The Original Meaning of “Due Process of Law” in the Fifth Amendment

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. ↑

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