Final Words on Tim Sandefur’s Substantive Due Process Paper

Tim Sandefur has responded to my last post on his paper.   Since these exchanges can only go on so long, I will keep my reply very brief.

Tim draws a distinction between the expected applications of a provision and the principles that the language of a provision appears to incorporate (something like an original public meaning approach).  He believes the former is not binding, but the latter is.  In this, Tim is following a common methodology of originalists these days.

Tim does not seem to sure whether he is an originalist.  He says that “the great pitfall of originalism is to get into a census of the subjective beliefs of the authors of the Constitution.”  He then asks whether originalists believe that “the authors of a legal text can actually be mistaken as to its meaning?”

But as my discussion above suggests, many originalists, including me, do not believe that the expected applications of a provision are binding.  And therefore originalists do agree that the authors of a law can be mistaken.

But Tim does not seem to recognize that by adopting an original public meaning approach, one assumes a burden.  If one is going to argue that the meaning of the text is what a reasonable interpreter would have regarded as the meaning (and therefore that the framers could have been mistaken about the applications), then one must provide strong evidence of its meaning.  Otherwise, there are no constraints on what the text means.  It is not enough to show, as Tim possibly does, that the interpretation he offers is a plausible meaning of the Due Process Clause.   One must show it is the best interpretation in the sense that it is the one that a reasonable interpreter would have adopted.  And I don’t believe that Tim successfully shows this.

Tim says that he is not a student of originalism.  And while I don’t believe that everyone needs to be an expert on originalist methodology, being familiar with the debate can help in constructing arguments.

In conclusion, while I have been critical of Tim’s position, I do want to commend him for a quite interesting paper – one that people would benefit from reading.  Unfortunately, it is disagreements on which we tend to focus.