![]() First, such a defense provides a textual footing for important unenumerated substantive rights against the federal government. ![]() Given the contemporary dominance of originalist theories of interpretation, anoriginalist defense of substantive due process under the Fifth Amendment is important for at least three reasons. On balance, these authorities show that one widely held public understanding of Fifth Amendment Due Process Clause in the late eighteenth century included judicial protection of unenumerated substantive rights against congressional encroachment. The classical understanding of law and thesubstantive 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. 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. 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. 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. The American colonies adopted higher-law constitutionalism in their revolutionary struggle, and carried it with them through independence and constitutional ratification. This concept of substantive due process originated in Sir Edward Coke's notion of a higher-law constitutionalism that understood natural and customary rights as limits on crown prerogatives and parliamentary lawmaking. 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. 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. A longstanding scholarly consensus holds that the Due Process Clause of the FifthAmendment protects only rights to legal process. ![]()
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |