AN ORIGINALIST DEFENSE OF SUBSTANTIVE DUE PROCESS: MAGNA CARTA, HIGHER-LAW CONSTITUTIONALISM, AND THE FIFTH AMENDMENT

One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as limits on congressional power. This concept of "substantive" due process originated in Sir Edward Coke's notion of a "higher law" constitutionalism, which understood natural and customary rights as limits on crown prerogatives and parliamentary lawmaking. The American colonies adopted higher-law constitutionalism in their revolutionary struggle and carried it with them through independence and constitutional ratification. Natural and customary rights limited the exercise of legislative power in the late eighteenth century through the normative definition of "law" inherited from the classical natural law tradition, which maintained that an unjust law was not really a "law." American judges and attorneys did not consider legislative acts that violated natural or customary rights to be real "laws," regardless of their compliance with a positivist rule of recognition. Accordingly, deprivations of life, liberty, or property effected on the authority of such acts did not comply with the "law" of the land or the due process of "law" because regardless of the process such acts afforded, the deprivations they imposed were not accomplished by a true "law." The classical understanding of "law" and the substantive understanding of due process that it underwrote are evident in legal dictionaries and in judicial decisions and arguments of counsel during the years immediately before and after ratification of the Bill of Rights in 1791. [PUBLICATION ABSTRACT]