No Arbitrary Power: An Originalist Theory of the Due Process of Law

“Due process of law” is arguably the most controversial and frequently litigated phrase in the Constitution of the United States. Although the dominant originalist view has long been that the Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees that do not constrain the content or “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there is a weighty case for some form of substantive due process. In this Article, we review and critique those findings, employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses—that is, their original meaning. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function—their spirit—of barring arbitrary exercises of power over people that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” require legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and impose a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence of the so-called “Lochner era,” and we delineate an approach that will better safeguard all people against arbitrary power. By so doing, we assist legislators by providing clarity concerning the constitutionally proper ends that they can pursue, aid state and federal judges by equipping them to review legislators’ pursuit of those ends, and help members of the public by enabling them to monitor the performance of their legislative and judicial agents