This Article is about the original meaning of the Fifth Amendment Due Process of Law Clause our findings may be relevant to the meaning of the very similar language of the Fourteenth Amendment, but they may not-the meaning of “due process of law” might have changed between 17. The conventional wisdom is that the Fifth Amendment applies only to the federal (national) government the Fourteenth Amendment applies to the states. 310, 316 (1945) (“ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”). deprive any person of life, liberty, or property, without due process of law. No State shall make or enforce any law which shall . . . The second Due Process of Law Clause is found in Section One of the Fourteenth Amendment: deprived of life, liberty, or property, without due process of law. The first is found in the Fifth Amendment: There are two Due Process of Law Clauses in the United States Constitution. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy.
We demonstrate that the original meaning of the Clause is much narrower. The Supreme Court has embraced both substantive due process-a jurisprudence of unenumerated rights-and procedural due process-a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. Drysdale Research Professor of Law at the University of Virginia School of Law. Morgenthau Distinguished Professor of Law & Douglas D. Williams, the staff at the Library of Congress, the Boston Public Library, and the Georgetown Law Library, and the editors of the Virginia Law Review. Crema wishes to thank Christopher Baldacci, Jud Campbell, Casey L.
This Article also benefited from comments received at the Originalism Works-in-Progress Conference at the University of San Diego Law School. Much of this Article’s discussion of Edward Coke and the “law of the land” draws on research he conducted as a student under the patient guidance of Deans William Michael Treanor and John Mikhail.
*Max Crema is a 2020 graduate of the Georgetown University Law Center.