Law Commons^™

An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks

Faculty Scholarship

A longstanding scholarly consensus holds that the Due Process Clause of the FifthAmendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, andthe emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps.

One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of substantive due process originated in Sir …