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The Tragedy of Nonoriginalism and Substantive Due Process

The principal comments on Tim Sandefur’s essay on substantive due process are in.  From an originalist perspective, the comments by Ryan Williams and Gary Lawson are particularly instructive.  Williams uncovers new evidence of the understandings of substantive due process at the time of the 14th Amendment’s framing.  Lawson relies on new evidence concerning the powers of Congress under the Necessary and Proper Clause — evidence that the Congress was a fiduciary and therefore bound by the limitations of a fiduciary.   (Lawrence Rosenthal’s comments are also interesting, but do not reflect new evidence on the original meaning, which is my focus here.)

What this new evidence shows is that our understanding of the original meaning of the Constitution’s clauses is in a pretty elemental state.  The reason for this is that for the last 75 years or so, when academic work was conducted, academics have not been very interested in the Constitution’s original meaning. Taking their lead from the legal culture and the Supreme Court’s nonoriginalism, legal academics looked at other matters.  Consequently, we have very limited knowledge of the original meaning of many of the Constitution’s significant clauses.

The nonoriginalism of this period is a genuine tragedy.  Most importantly, as I have argued elsewhere, it has deprived the nation of the constitutional amendments that would have been passed had the Court not engaged in judicial updating.  But also important is that our understanding of the original meaning has been impoverished because of this neglect of originalism.  We are now learning things at a very fast pace, but we still have 75 years to catch up on.

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