A response to Ryan Williams and Michael Rappaport.
Profs. Ryan Williams and Michael Rappaport express sympathy with my argument on a conceptual level, but doubt the framers had such things in mind when writing the Constitution. I think I provide strong historical evidence (as have others) that substantive due process was familiar to and respected by the founders, although they didn’t call it by that name. But it’s true that my focus is more conceptual than historical: I’m interested in what the Constitution’s language means, not in what any particular people at any particular time thought it meant.
Nevertheless, consider: the founding fathers grew up without a Constitution. Then they wrote a Constitution that lacked a Bill of Rights. It was only in 1791, when James Madison was 40 years old, that the Due Process of Law Clause became part of the Constitution. His own state had only adopted its due process clause (Virginia’s “law of the land” clause) in 1776, when he was 25. Before then, judicial protection of individual rights was done by English common law courts, as it had been done since at least Lord Coke’s day, largely under the law of the land clause of Magna Carta. In many famous decisions that were the commonplace learning of law students in the founding era, English judges applied the law of the land clause’s promise of lawful, non-arbitrary rule to protect individual rights—rights that were, of course, unenumerated. (And yes, this was done even before the 1689 English Bill of Rights.) The founders would have been very comfortable with the idea of judicial enforcement of unenumerated rights under the law of the land or due process clauses, because for much of their lives, that was all the law they knew.
Prof. Williams, of course, musters evidence in his recent Yale Law Journal article, to show that the theory of substantive due process flowered much more in the nineteenth than in the eighteenth century. There are many reasons for this. For one thing, American courts operated independently only for the last quarter of the eighteenth century, and legal recordkeeping was poor. So, too, westward expansion brought new legal issues to the forefront; rising literacy rates and the democratization of the legal profession made litigation more common. There were more states, and they were doing more things, in 1880 than in 1820. Moreover, there was a profoundly important national conversation, so to speak, going on in this era—not just over slavery, but over sovereignty, administration, tort law, the rights of women, and so forth. It’s not surprising that we find a richer source of legal precedent and a greater concentration of legal scholars on these questions during this period. Virtually all our tort law also comes from this period—that doesn’t mean that tort law somehow lacks an originalist pedigree. I wouldn’t call this “innovation,” as Prof. Williams does; I would call it exegesis, elaboration—in short, interpretation. But whatever the reason, the fact that substantive due process was enforced more in the nineteenth century than earlier doesn’t disprove the thesis that the words mean what I say they mean.
Prof. Rappaport is more severe. He thinks I’m just picking and choosing whatever I want in the historical materials. I think this is unjust. My argument is that (1) ultra vires government action is not “law” for purposes of the Due Process of Law requirement; (2) government acts are ultra vires if (among other things) they exceed either explicit or implicit limits on lawmaking; and (3) we can determine what the implicit limits on lawmaking are by inquiring into the principles of the American founding, which means referring to documents like the Declaration of Independence and the writings of the founders. It’s not my fault that they happen to have been classical liberals, nowadays called libertarians. But I think this should answer Prof. Rappaport’s question about method.
Of course, this isn’t the time or place to enter into a full debate over whether originalism is the way to go. But I’ll make one observation on that point. If my argument is correct, then it must follow of course that we are bound by it, even if the authors of the Constitution didn’t expect the words to be applied in this particular way. If the Due Process of Law Clause prohibits arbitrariness, and arbitrariness means self-serving, ipse dixit, irrational, non-general uses of government power, then it follows that that’s what the framers intended, since that’s what they said. That’s how we interpret just about any other written text; contracts, for example. We don’t consult the subjective intentions of the author—we consult their words, and we interpret those words. If the words mean X, then X is what the author intended, or at least, it’s what we’re legally bound to deem to have been their intent.
As Tara Smith has observed, the great pitfall of originalism is to get into a census of the subjective beliefs of the authors of the Constitution. Serious originalists don’t do this. Instead, they inquire into the principles—the concepts—for which the words stand, and follow those. Consider Kyllo v. United States or the recent GPS decision, Jones. To say that use of infrared detection equipment or GPS are not Fourth Amendment searches, because the founders didn’t know of these technologies, would, I think, be ludicrous. The better conclusion is what Justice Scalia said in Jones: “The concurrence begins by accusing us of applying ‘18th-century tort law.’ That is a distortion. What we apply is an 18th-century guarantee against unreasonable searches.” Cases like these are resolved by determining the meaning of the word “search”—in other words, that we seek out the principle, not the specific applications, when understanding a legal rule. In applying the Due Process Clause, we are applying an 18th century guarantee against arbitrary or lawless government action—we are in the business of interpreting and applying the principle, not of ascertaining the subjective understandings of an individual or a group. Or, again to pick and choose from Lord Coke, “though a man can tell the law, yet if he know not the reason thereof, he shall soone forget his superficial knowledge. But when he findeth the right reason of the law, and so bringeth it to his natural reason, that he comprehendeth it as his own, this will not only serve him for the understanding of that particular case, but of many others: for cognitio legis est copulata et complicata.” Another term for inquiring into the right reason of the law is “seeking very hard to find out how a reasonable person at the time would have understood constitutional clauses in context.” I believe this is just what I’m doing—just what Daniel Webster did—just what the Lord Coke did—when determining that government acts that are arbitrary, self-serving, ipse dixit, and so forth, are not “law” and are therefore barred by the law of the land and due process of law clauses.
Now, I’m persuaded that the history does show that the founders believed, and rightly, that this clause barred government from acting in an arbitrary, self-serving, fundamentally unfair, ipse dixit, irrational manner—that is, from acting lawlessly. But I admit I’m more concerned with the “rightly” part of that sentence than with the “they believed” part. And if that means I’m not really an originalist, I can live with that. I’ve been content in the past to call myself a kind of originalist, but in the end, the reason I adhere to the framers’ views is not because they were the framers, but because their views were right.
That brings to mind a question I’d like to ask Prof. Rappaport and other originalists: do you believe that the authors of a legal text can actually be mistaken as to its meaning? To be more precise, if we are bound to follow a text as understood by the authors of that text, it would seem to follow that the authors are the definitive sources with regard to its meaning. Thus if a statute is passed in that, say, imposes a tax on the importation of fish, by a legislature whose members think that dolphins are fish, and later on, scientists discover that dolphins are not, in fact, fish—does the statute apply to dolphins or not? Do you rely on something like Prof. Rubenfeld’s distinction between “Application Understandings” and “No Application Understandings”? Or do you distinguish between the interpretation of a written text on one hand—which is subject to the standard analytical tools—and the nature of an obligation to obey a written text on the other, which includes other considerations? I mean this as a serious question, because as I’ve said, I’m not a student of originalism per se, and it’s possible these questions have already been answered without my knowing it.