Abstract: Lawrence Rosenthal* Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is ascendant. Originalist methodology now proliferates throughout constitutional law. In one area of constitutional jurisprudence, however, originalism is nearly entirely absent. The Constitution twice forbids deprivation of life, liberty, or property without due process of law, but originalists cannot develop an account of what type of process was considered “due” at the time of the framing. That omission, I will argue, has important implications for originalism as a method of constitutional interpretation. Indeed, an inquiry into the original understanding of due process suggests that the original meaning of this constitutional provision – and perhaps many others – is nonoriginalist. The discussion below unfolds in four parts. Part I surveys the rise of public-meaning originalism – the view that constitutional provisions should be construed in light of their generally understood meaning at the time of their enactment – and its effort to anchor constitutional interpretation in historical analysis by interpreting open-ended constitutional provisions in light of the legal rights that were commonly recognized at the time of the framing. Part II then applies public-meaning originalism to arguments about the
Publication Year: 2006
Publication Date: 2006-01-01
Language: en
Type: article
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