Article by:
Andrew T. Bodoh*

40 Campbell L. Rev. 481 (2018)


In the last several years, United States Supreme Court Justice Clarence Thomas and others ascribing to originalism jurisprudence have proffered an excessively narrow view of “liberty” in the federal Due Process Clauses.  This view equates Due Process liberty with Sir William Blackstone’s definition of “personal liberty” in the first volume of his Commentaries on the Law of England, originally published in 1765.1  Blackstone defined “personal liberty” essentially as the absence of physical restraint—the ability to act on one’s “power of loco-motion.”2  Justice Thomas’s dissent in Obergefell v. Hodges, in particular, presents the originalists’ Due Process fallacy.3

Originalism is supposed to be rooted in history, so one may justly critique originalists for engaging in faulty historical interpretation.  The originalists’ Due Process fallacy, equating Due Process liberty exclusively to freedom from physical restraint, and specifically Justice Thomas’s presentation of this argument in his Obergefell dissent, misinterprets history.  Perhaps Justice Thomas’s final conclusion in Obergefell is valid—this Article simply does not engage in that analysis.  Instead, this Article criticizes, based on the historical record, Justice Thomas and his compatriots’ views that “liberty” in the federal Due Process Clauses means merely the absence of physical restraint.

For a more targeted criticism, this Article does not dispute Justice Thomas’s method of interpreting the Fourteenth Amendment Due Process Clause through the lens of the Fifth Amendment Due Process Clause.  Legal scholars have reasonably suggested the Fourteenth Amendment Due Process Clause has a distinct “original meaning” that may even alter the legal meaning of the Fifth Amendment Due Process Clause.4  This Article does not follow this approach.  Rather, this Article studies the meaning of due process clauses and their prototypes (i.e., “law of the land” clauses) from the American Revolution to the ratification of the Fourteenth Amendment, as Justice Thomas does in this portion of his Obergefell dissent.5

Part I of this Article presents Justice Thomas’s view from Obergefell that Due Process liberty is the absence of physical restraint.  From this dissent and its sources, this Article identifies five arguments and assumptions supporting Justice Thomas’s narrow view of Due Process liberty.  The Article then critiques each in turn, building in stages a competing view of the meaning of the constitutional norm.  Specifically, this Article argues the Fifth Amendment Due Process Clause was, and in many respects remains, a repository of unformulated or imperfectly formulated principles regulating government action in the interests of preserving liberty, broadly understood as freedom from unreasonable or arbitrary government action.6

In developing this argument, Part II considers the erroneous assertion that late eighteenth-century American law of the land and due process clauses were all substantially identical.  Part III argues “liberty” in these clauses is not a distinctly definable term, as Justice Thomas presumes in Obergefell, but rather “life, liberty, or property” is a single term of art.  Part IV argues Due Process “liberty” is not Blackstonean “personal liberty”—i.e., freedom from restraint—but rather “life, liberty, or property” refers collectively to a broader Lockean notion of liberty as the opposite of arbitrary government.  Part V challenges textual arguments based on the Constitution advanced by Justice Thomas and his Obergefell sources.  Part VI challenges Justice Thomas’s view that due process liberty was uniformly interpreted as freedom from physical restraint in pre-Fourteenth Amendment case law.  In addition to critiquing Justice Thomas’s arguments and those of his sources, Part VI also reviews North Carolina case law of the period to illustrate how one state’s judiciary struggled to define the practical meaning of its law of the land guarantee—a counterpoint to Justice Thomas’s view that such clauses had a simple meaning that was uniformly understood.  The Article concludes by proposing factors to help guide contemporary originalist jurists in applying the Fifth Amendment Due Process Clause based on the view presented in this Article.

*     *     *

Download the full Article