Gorsuch’s Originalist Exploration of the Legal Meaning of Due Process

The press has been spinning Justice Gorsuch’s vote in favor of a resident alien in Dimaya v. Sessions as a surprising decision to side with the liberal justices. But that storyline misses out on the real significance of his action, which lies in his opinion, not his vote, however decisive. That opinion shows instead that he will be a sophisticated modern originalist, at least where precedent does not dictate otherwise, no matter where that originalism takes him.

In Dimaya v. Sessions, the question was whether a provision that allowed a resident alien to be deported from the country on the conviction of a category of crime was unconstitutional, because the category was unconstitutionally vague. (Briefly, it required judges to decide whether the a particular kind of crime, like burglary,  created a “substantial risk of violence.”) Gorsuch argued in the affirmative. The most powerful part of his opinion was his reasoning that the Due Process Clause prohibited provisions in either criminal or civil law that did not give fair notice of the offense with which the government would charge the defendant. There are several important originalist steps that Gorsuch takes that have significance beyond this case.

First, Gorsuch reads due process as part of the language of the law. As Mike Rappaport and I have noted, if due process is read, as it can be, in ordinary language, the term would appear to mean something like fair procedure, a pretty open-ended concept. Instead, Gorsuch interprets it as requiring “customary procedures to which freemen were entitled by the old law of England.” And he finds that fair notice was something to which freemen were entitled and which courts enforced. This is a legal reading of due process, much like one the Laura Donohue gives to “reasonableness” under the Fourth Amendment, which requires searches to follow the strictures of the common law.

Gorsuch also notes that many of the other provisions of the Constitution seem to depend laws being reasonably clear. For instance, the right to a lawyer is not much help if the law is very vague. This kind of analysis shows that originalism at its best considers a provision in light of the rest of the Constitution to resolve ambiguity or uncertainty. Gorsuch also argues that this reading better comports with the separation of powers. Vague statutes allow Congress to delegate core legislative responsibilities. I would also note that judges around the time of the Framing applied separation of powers principles to help fix the meaning of constitutions, as in the Kamper v. Hawkins. This is an interpretive principle that may well have been deemed applicable to the Constitution. It would then be an original method of interpretation.

There are also some general lessons beyond the obvious one that originalism cannot be captured by attitudinal model which sees judges as politicians in robe voting for policies they like. First, originalism is not about finding the clearest rules. Reading the Due Process Clause to require only that a legislature have passed a law would be a clearer standard than requiring fair notice but, under Gorsuch’s view, not the accurate one. Nor is originalism the best theory of interpretation because the theory itself is likely to yield a patently obvious answer. Justice Thomas, a good faith originalist, is doubtful that Gorsuch is right in his analysis. Originalism is bettered justified on other grounds.

But originalism does tend to avoid the kind of ad hoc policy calculus in which the Dimaya plurality engaged. No doubt concerned that business people and others might try to use this decision to challenge vague regulatory prohibitions of the administrative state, the plurality suggested that it was key to the case that Dimaya faced the hardship of deportation. Gorsuch’s response was appropriately tart:

But, grave as that penalty may be, I cannot see why we would single [deportation] out for special treatment when . . . so many civil laws today impose so many similarly severe sanctions. Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home? I can think of no good answer.

Nevertheless I am particularly uncertain about an important aspect of Gorsuch’s position and thus whether he correctly decided this case. He allows the Due Process Clause’s restriction on vaguensss to be made into a facial challenge. In other words, Gorsuch permits the defendant to challenge a statute even if his own conduct falls within the clear core of a provision with much vagueness around the edges. I think Clarence Thomas may have the better of the argument that the Due Process Clause does not extend so far, and he does so for reasons I hope to consider in a subsequent post.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on April 23, 2018 at 12:45:29 pm

I disagree that Justice Thomas has the better of the argument, and I look forward to your post concerning that.

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Devin Watkins
on April 23, 2018 at 12:46:58 pm

Amusing, Gorsuch is going to be California's best friend and necessary 5th vote as the Golden State explores the practical ramifications of Jefferson and Madison's Virginia and Kentucky Resolutions before the Supreme Court.

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on April 23, 2018 at 17:01:18 pm

I second that and would hope that McGinnis' next post will allow us to determine precisely what McGinnis thinks of the Dimaya decision.
Is he with gorsuch? or Thomas?

How broad are the protections of the DP Clause?; broad enough to rule out "vague" law? broad enough to ultimately eliminate or reduce Legialtive Branch delegation of lawmaking powers.

As of now, I side with Gorsuch.

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on April 23, 2018 at 18:13:13 pm

Gorsuch interprets it as prohibiting “customary procedures to which freemen were entitled by the old law of England.”


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on April 24, 2018 at 15:37:47 pm

"He allows the Due Process Clause’s restriction on vaguensss to be made into a facial challenge."

This is bad? Why? If the statute does not give fair notice of the prohibited conduct, then why not a facial challenge?

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on April 24, 2018 at 16:02:55 pm

I want to address some of the concerns in the article because I believe it misunderstands Gorsuch's opinion. I have not read the dissenting opinion by Justice Thomas and therefore cannot comment on it.

I'll start by clarifying that Gorsuch's opinion never suggests a prohibition of the "customary procedures to which freemen were entitled by the old law of England" (3rd paragraph of article). Instead, he conceives the Due Process clause as a principle which seeks "to ensure that the people's rights are never any less secure against governmental invasion than they were at common law" (Gorsuch's opinion).

Regarding the author's concern about the "new" opens the door to facial challenges of a statute, I respond that Gorsuch's opinion simply does not "create" that possibility: It has always existed, and in fact it has been vexatiously exerted by wrongdoers with the hope avoid punishment/liability.

Where an offense is reasonably identified as within the core of a provision, the ruling or verdict is a straight-forward matter. That is why, at the end of his opinion, Gorsuch essentially encourages legislators to amend statutory language so as to embed "fair notice" in the enacted laws. But in reality, Gorsuch's criticism focuses on legislation containing catch-all or "residual" clauses which are intractably ambiguous or unclear. Gorsuch correctly points out that an absolute lack of statutory precision or reasonable guidance leads to rulings by judicial hunch, the exercise of arbitrary power, and decisions where "Will, not judgment, dictates the result".

In many scenarios, even the most competent judge is left in the dark as to whether the offense "by its nature, involves a substantial risk that physical force [...] may be used in the course of committing the offense". This statutory language entails wild speculation which, insofar as it is futuristic, has nothing to do with fact-finding.

Even where the legislature is written in clear and specific terms, corruption of the judiciary (and I can give you a list of Michigan judges who fall in this group, starting with Carol Kuhnke, http://www.oneclubofjusticides.com/2018/04/felon-carol-kuhnke-seeks-reelection-as.html ) leads to severe inconsistencies in the application of the laws. Thus, an unchecked merging of legislative and judicial powers into the person of a judge can only exacerbate the judicial abuse of power.

I agree with Gorsuch's point that fair notice (and the void-for-vagueness doctrine that derives from it) is essential for Due Process, and I would emphasize that Due Process is more important than Originalism. Without clear laws, the parties cannot prepare their case because they are left in the dark as to what elements to prove, what standard of proof applies, what legal precedents control the case, and what would be a fair and foreseeable outcome. This extent of randomness weakens the notion of Due Process.

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Iñaki Viggers
on April 24, 2018 at 16:05:29 pm

No, not prohibiting it. If anything, it's quite the opposite.

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Iñaki Viggers
on April 24, 2018 at 17:51:19 pm

Yep!!!!! Moreover, viewed in a certain light, Gorsuch's decision could lead to the overturning of many more "pieces" of legislation, and in particular, such legislation as we observe delegating vague and impermissible grants of authority to Administrative Agencies. Followed further, it would lead to the elimination of Agency "interpretations, findings and guidance as the Legislative Branch being found to have no rightful authority to impose "vague" and unclear obligations upon the citizenry, what right does a delegee have to exercise that which is proscribed to the delegating power?

let us hope that Justice Thomas finds his way to see the rightness of Justice Gorsuch's decision as Thomas has repeatedly questioned the underpinnings of the Administrative State.

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on April 25, 2018 at 13:21:45 pm

[…] Why, then, did so many right-of-center scholars praise Gorsuch’s erroneous decision? (E.g., here, here, here, here, here, and here.) At the risk of stepping on some toes, I’ll offer several […]

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Has Gorsuch ‘Gone Wobbly’ Already? - American Greatness

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