Document Type


Publication Date

Summer 2023




As the sole originalist on the program, my first task is to define what originalism is so that we are all on the same page. Originalism can be summarized in one sentence: the meaning of the Constitution should remain the same until it's properly changed - by amendment.

Originalism is not a single theory. It is a family of theories, and that family shares two common precepts. The first is called the Fixation Thesis: the meaning of a text is fixed at the time that that text is promulgated. The Fixation Thesis is a descriptive claim about how language works and can be disputed, of course, by making the claim that this is not how language works. That language works a different way.

The second precept is normative. It is the Constraint Principle, which is the claim that the constitutional actors ought to follow the original meaning of the Constitution. Unlike the Fixation Thesis, the Constraint Principle is a normative claim, and must be defended or challenged on normative grounds. There are various normative grounds that are not mutually inconsistent on behalf of the claim that constitutional actors should follow the original meaning of the Constitution but, of course, it can be disputed on normative grounds.

In my allocated time, I cannot defend these two precepts, but I thought it would be useful to know what method I am employing when I answer the question about the original meaning of "due process of law."

Let me start by addressing the question of whether the original meaning of the Constitution protects unenumerated rights. Here's a hypothetical. Suppose a state statute mandating that all children be taken immediately after their birth to be raised by state-controlled nurseries, as Plato recommended in the Republic, is enacted by the requisite majority of each chamber of a state legislature and signed into law by the governor. Would a federal or state judge have the power to declare that such a statute is unconstitutional? Or let me pose the question this way: Do you have a constitutional right to raise your own children when the Constitution says nothing about such a right?

Publication Citation

SMU Law Review, Vol. 76, 441.