Arguing that courts’ use of substantive due process in varied ways and without reference to a consistent methodological approach leaves lower courts adrift. Finding a “small kernel of originalist truth” in the “shocks the conscience” test for substantive due process, arguing that it prohibits egregious state-committed torts. Citing primary source evidence to argue that due process likely imposed a strong, substantive limit on legislatures rather than purely procedural requirements.
Responding to Kurt Lash’s criticism of Barnett and Bernick’s Fourteenth Amendment analysis. Agreeing that the Due Process Clause protects the unenumerated rights of all people but requesting that Lash put forth his theory of how it does so. Pinpointing other possible areas of agreement with Lash’s theories about enumerated rights. Disagreeing with Lash on other points, such as the idea that there is no evidence that Republicans’ understanding of the Privileges and Immunities Clause transformed during the antebellum period.
Analyzing the original meaning of the due process of law clauses and their spirit. Claiming that the spirit of the clauses is to bar arbitrary exercises of power over people. Arguing that legislators must act in good faith to enact legislation designed to achieve constitutionally proper ends, and judges must assess whether they have succeeded.
Arguing that the 1866 Civil Rights Act protected rights associated with Due Process, not rights associated with the Privileges or Immunities or Citizenship clauses. Drawing on the statements and writings of John Bingham, who supposedly believed that Congress lacked constitutional power to enforce the Fifth Amendment’s Due Process Clause. Looks to various ratification-era primary sources.
Questioning the assumption that the substantive due process analysis must be the same for both federal and state provisions. Examining the historical evidence for the Fifth Amendment and Fourteenth Amendment separately to assess whether either admitted a substantive component. Contending that, though the Fifth Amendment speaks only to procedural due process, the Fourteenth Amendment was broad enough to encompass some form of substantive due process. Looking to due process of law in 1791 as discussed in colonial-era declarations of rights, early statutes, treatises, and judicial decisions, as well as similar sources in 1868.
Arguing that originalists can defend substantive due process on the grounds that founding-era attorneys and judges did not consider legislative acts that violated natural rights to be real laws. Pointing to Sir Edward Coke’s idea of “higher law” constitutionalism as the origin of substantive due process. Tracing the development of substantive due process from the Magna Carta to the drafting and ratification of the Due Process Clause. Citing various primary sources and adopting a public meaning originalist approach.
Positing that the Takings Clause of the Fourteenth Amendment may have different, broader meaning than its Fifth Amendment analog. Arguing that the original meaning of the Fourteenth Amendment Takings Clause would prohibit at least some regulatory takings. Arguing that evidence exists that the content of takings principles evolved between the drafting of the Fifth and Fourteenth Amendments, such that the latter Amendment has a different meaning.
Applying public meaning originalism to arguments about the constitutionality of a procedural innovation under the Due Process Clauses–municipal systems for the administrative adjudication of parking tickets. Arguing that an originalist view of procedural due process dooms any innovations in criminal or civil procedural infringing upon personal rights recognized at the founding.
Arguing that substantive due process can be consistent with an originalist interpretation of the Constitution. Tracing the developments of due process from the thirteenth century in England through the English common law and American colonial period. Examining the related “law of the land” language from which the modern notion of due process was derived.
Examining the original understanding of procedural due process from its origins in English Law. Discussing early procedural due process cases prior to the ratification of the Fourteenth Amendment in both federal and state courts. Arguing that the prevailing methodology stipulated that when private rights were violated, the Constitution must first be examined to determine whether a protection more specific than due process existed.
Arguing that the Supreme Court transformed the Due Process Clause from one requiring equal procedures to an unrestrained grant of power for judges to review state laws touching life, liberty, or property. Proposing a constitutional amendment to define due process of law as encompassing procedural guarantees alone, which the author contends will restore its original intent and meaning.