No Arbitrary Power: An Originalist Theory of the Due Process of Law

“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents

The Difference Narrows: A Reply to Kurt Lash

We thank the Notre Dame Law Review for allowing us to respond to Kurt Lash’s reply to our critique of his interpretation of the Privileges or Immunities Clause. We could forgive readers for having difficulty adjudicating this dispute. When Lash argues, evidence always comes pouring forth, and the sheer volume can overwhelm the senses. We sometimes have a hard time following his arguments, and we are experts in the field. We can only imagine how it seems to those who are otherwise unfamiliar with this terrain. So, in this reply—with a few exceptions—we will avoid piling up any new evidence and will instead offer succinct counterpoints to his points. Above all, we wish to stress the narrowness of our disagreement—narrowness that is easily obscured by the presentation of one source after another. As we did in our original article, we start with our points of agreement—which Lash repeatedly characterizes as “concessions.

The Letter and the Spirit: A Unified Theory of Originalism

The concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” When combined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism. Our theory of constitutional construction draws upon a familiar common-law concept long used in contract and fiduciary law to handle the problem of opportunistic abuse of discretion: the duty of good faith. We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens—a relationship characterized by discretionary powers in the hands of judges and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given to them in “this Constitution” in good faith. This means that judges engaging in constitutional construction (or “implementation”) must seek to give legal effect to both the Constitution’s “letter” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text). Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty to employ good-faith construction. Good-faith construction consists of (a) accurately identifying the spirit—or “original function”—of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists in opportunistically using the discretion inherent in implementing the Constitution to evade its original letter or spirit in pursuit of the judge’s own extraconstitutional preferences

The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment

In earlier writings, both of us have expressed sympathy for the view that the Privileges or Immunities Clause affords absolute protection to unenumerated rights, such as those contained in the Civil Rights Act of 1866, and authorizes Congress to enact protective legislation. Neither of us, however, has engaged with Kurt Lash’s most recent and unique two-class interpretation of the original meaning of the Privileges or Immunities Clause in the depth that it deserves. Nor have we evaluated his recent efforts to demonstrate that the Fourteenth Amendment’s Due Process of Law Clause empowers the federal courts and Congress to protect unenumerated rights like the right to make contracts, among others listed in the Civil Rights Act of 1866. In this Article, we will do so. We will contend that Lash has provided readers with an abridged version of the Privileges or Immunities Clause. In future writing, we will advance a competing account of the original public meaning of the Privileges or Immunities Clause. We will also develop a framework that can be used by judges and legislators to identify the rights protected by the Clause, to thwart state abridgments of those rights, and to evaluate congressional legislation that is purportedly designed to protect those rights. Part I provides an exposition of Lash’s thesis. Because his arguments are complex, and rely on diverse evidence, our summary is lengthy. Given the multiplicity of his publications on the subject, we think an accurate summary of Lash’s approach is both independently worthwhile and a necessary prelude to any critique. Part II systematically critiques Lash’s evidence and arguments. We find that Lash’s enumerated-rights-only—or “ERO”—theory has little support in antebellum jurisprudence; that the evidence Lash offers to show that John Bingham, upon whose testimony Lash heavily relies, held Lash’s ERO theory is equivocal at best; and that Lash’s ERO theory was not widely shared by the Fourteenth Amendment’s framers. We then explain why evidence from the debate over ratification does not indicate that the ERO theory was embraced by the public. Next, we canvass postratification jurisprudence and congressional debates over various pieces of civil rights legislation both prior to and shortly after the Supreme Court’s fateful decisions in the Slaughter-House Cases and United States v. Cruikshank—decisions that are generally regarded as having rendered the Privileges or Immunities a “practical nullity.” We find that the interpretations of the Clause that are contained in these materials are, for the most part, inconsistent with Lash’s ERO theory. Finally, we engage and respond to Lash’s argument that the political dynamics during the relevant time period made it impossible for any constitutional amendment that delegated to Congress and the federal courts the power to enforce unenumerated rights to be ratified

Leveraging Digital Transformation to Build the Technology Of Tomorrow Using Yesterday’s Equipment

Today’s industry sectors are filled with machines developed years ago. Healthcare, manufacturing, sustainment operations, and many others have equipment that may be reliable, but lacks certain capabilities that the newest technology delivers. The digital environment is becoming a necessity for users who want greater insights into how to improve their processes. A solution to this problem would be to purchase the newest equipment that contains robust measures to generate, collect, and analyze data. However, this solution may not be financially feasible for some and for others may sacrifice machine downtime and reliability. To combat these issues, this research focuses on applying a digital transformation approach to legacy equipment. Collected and analyzed data is used to develop advanced digital tools such as augmented reality, virtual reality, artificial intelligence, and digital dashboards. A use case of Automated Fiber Placement (AFP) is used to showcase the benefits of the digital transformation approach compared to typical controls retrofit. While both approaches result in similar benefits, the owner of the equipment must decide which approach will ensure that the most optimized process. In addition, a use case of military maintenance programs is discussed to provide a logical way ahead for a larger scale implementation of digital transformation. Both use cases show the benefits of the digital transformation approach and help to crystallize what the future of product life cycle management will look like

Getting Ready for College: An Implementation and Early Impacts Study of Eight Texas Developmental Summer Bridge Programs

In 2007, the Texas Higher Education Coordinating Board (THECB) funded 22 colleges to establish developmental summer bridge programs. Aimed at providing an alternative to traditional developmental education, these programs involve intensive remedial instruction in math, reading, and/or writing and college preparation content for students entering college with low basic skills. In 2009, the National Center for Postsecondary Research (NCPR) launched an evaluation of eight developmental summer bridge programs in Texas (seven at community colleges and one at an open-admissions four-year university), the early findings of which are described in this report. Students who participated in the study were randomly assigned to the program group or the control group. Program group students participated in the developmental summer bridge programs, while control group students received colleges’ regular services. All developmental summer bridge programs had four common features: accelerated instruction in math, reading, and/or writing; academic support; a “college knowledge” component; and the opportunity for participants to receive a $400 stipend

Variation in Patient-Sharing Networks of Physicians Across the United States

Sociolog

Getting Ready for College: An Implementation and Early Impact Study of Eight Texas Developmental Summer Bridge Programs

Displayed on billboards and license plates alike, “College for All Texans” is the unofficial motto that is promoted statewide to encourage college readiness, participation, and success in Texas. Policymakers, educators, and business leaders agree that Texas must increase rates of college participation and success to preserve the economic vitality of the state and to secure the future well-being of Texas residents. To address the dynamic needs of the growing state population, Texas launched in 2000 an ambitious statewide strategic plan called called Closing the Gaps by 2015. One of the primary objectives of this plan is to increase enrollment and academic success in Texas colleges and universities. One component of the Closing the Gaps by 2015 initiative was the creation of developmental summer bridge programs — intensive summer experiences that offer eligible students remedial instruction in math, reading, and/or writing along with an introduction to college. Developmental summer bridge programs aim to reduce or eliminate the need for developmental courses so that more students are prepared for college-level courses in their first semester of college. Programs typically offer intensive, targeted coursework for four to five weeks over the summer, accompanied by tutoring, additional labs, and student support services. The integrated approach used in developmental summer bridge programs is thought to help ease students’ transition into college. But despite the increasing popularity of summer bridge programs across the country, little empirical research on their outcomes or impacts has been conducte

Risk Factors for Post-ERCP Pancreatitis: A Prospective Multicenter Study

Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/75082/1/j.1572-0241.2006.00380.x.pd