An originalist approach to due process can take several forms, and Justice Gorsuch's "surprise" decision in Dimaya v. Sessions reinforces this.
We have recently written a paper arguing that the Constitution is written in the language of the law. In particular, the language of the Constitution includes terms, like “Bill of Attainder,” that are patently technical, and terms, like “good Behavior,” that are latently so in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules, including those that tell readers when to understand a term in its legal sense or its ordinary meaning sense.
The Constitution’s legal language is significant. Theoretically, it shows that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions.
Striking confirmation of our thesis comes from modern originalist scholarship. Much of the best of such work depends on reading the Constitution as written in the language of the law and is inconsistent with reading it as written in ordinary language. In this post and the next we will provide some examples.
John Stinneford has provided a new interpretation of the Eighth Amendment by reading the Clause in the language of law. The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Stinneford argues that “unusual” means “against immemorial usage”—a common law concept. The use of this legal meaning resolves any ambiguity that would exist if the term were read in ordinary language, in which “unusual” would more likely suggest evaluating a punishment against current norms rather than past norms.
Stinneford also shows that the term cruel is ambiguous if viewed from an ordinary language perspective, because it could apply to cruelly disproportionate punishment or to punishment done with cruel intent. He again uses the legal history of the term to show that its legal meaning was the former. He also uses a legal interpretive rule, noscitur a sociis, to argue that disproportion is the more appropriate interpretation of cruel, given that term comes in a clause that also bans “excessive” fines and “excessive” bail, terms themselves that focus on disproportionate effect. He shows that this interpretive rule existed at the time of the Bill of Rights. Thus, his analysis not only turns on the language of the law, but on the use of a specific legal interpretive rule that was applied to legal language at the time of the Clause’s enactment.
Scholars have recently tried to discover the original meaning of the Due Process Clause by giving the Clause its legal meaning rather than its ordinary meaning. Like Stinneford’s reading of Cruel and Unusual Punishment, Nathan Chapman and Michael McConnell interpret the term “due process” as placing into the Constitution certain common law understandings. As a result, they understand it as preventing the legislature from exercising judicial power or violating common law procedural protections. Ryan Williams adopts a different interpretation of the Due Process Clause, but he also embraces the legal meaning of the Clause. Williams maintains that the Due Process Clause changed meaning prior to the 14th Amendment. He argues that over a score of antebellum court decisions abandoned an essentially procedural understanding and understood the Clause in a more substantive way. Those legal decisions established a new legal meaning for the Clause. Indeed, it seems unlikely that the ordinary meaning of due process would have changed during this period.
In our next post, we will provide some more examples of excellent recent originalist scholarship that relies on the language of the law.