Solum and Crema on The Original Meaning of "Due Process of Law" in the Fifth Amendment @lsolum @VirginiaLawRev @_rundnc

Lawrence B. Solum, University of Virginia School of Law, and Max Crema have published The Original Meaning of “Due Process of Law” in the Fifth Amendment at 108 Va. L. Rev. 447 (2022). Here is the abstract.

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.

Download the article from SSRN at the link.

Looking At Looking Down

Yxta Maya Murray, Loyola Law School (Los Angeles), is publishing Peering in the Georgetown Journal on Poverty Law Policy. Here is the abstract.

“Peering” designates a legal practice of gazing at poor people. Legal actors literally peer, that is, look at the poor; they also peer in another fashion, which determines whether the visual subject is their peer. If the observed falls short of the observer’s social class, the law fixes them in their “proper place.” In the Fifth Amendment takings context, this means they are at risk for condemnation.

This article traces peering’s evolution in Fifth Amendment law. It notes peering’s initial descent: From the 1920s until the 2000s, courts looked “down” at the poor, often describing them as monstrous. “Slums” – edifices typically depicted as housing contagious subhumans – proved perfect objects of condemnations since they threatened the upper strata. In the 1980s, however, another legal gaze flourished: One that looked “up,” and whose bearers peered themselves with wealthy developers. In cases stemming from Michigan’s 1981 Poletown Neighborhood Council v. City of Detroit to the Supreme Court’s 2005 Kelo v. City of New London, we find rhetoric signaling legislative and judicial alignment with affluence. Here, lawmakers and judges approved condemnations that fostered “world class” and “cutting edge” corporate factories. I call this the ascendant or aspirational gaze, and in its exuberant optics, both the poor and the middle class find themselves vulnerable to “economic rejuvenation” takings. An active lobby of activists and judges challenge this gaze with petit bourgeois perspectives, leading to reform. But the poor submerge in these visuals, finding vanishing chances to escape “blight” condemnations.

To understand and combat peering, I study Columbia University’s recent expansion into West Harlem. I contemplate New York Court of Appeals’ 2010 Matter of Kaur v. New York State Urban Development Corporation, which approved of Manhattanville’s condemnation, and also the political rhetoric and blight reports that justified the taking. I additionally reference interviews with members of the Harlem community, and offer their home photographs as counter‐images to the ones that filled the blight reports. Inspired by the legal history I recount, as well as the testaments and images offered by Harlem residents, I describe the racist, classist, and violent meanings of blight findings. I reject “blight” as unsalvageable, but sketch a Fifth Amendment doctrine that would foster what one Harlem leader describes as a “decent life.”

Download the article from SSRN at the link.