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Abstract

In an effort to discredit substantive due process, originalists often misinterpret the federal Due Process Clauses. Justice Clarence Thomas's Obergefell v. Hodges dissent illustrates this. In this dissent, Justice Thomas cites Blackstone's Commentaries to argue that Due Process "liberty" is merely freedom from physical restraint, what Blackstone describes as the power of "loco-motion."

This Article challenges Justice Thomas's narrow view of Due Process liberty from Obergefell v. Hodges on its own terms. It distills from the dissent and its sources five assumptions or premises supporting Justice Thomas's view, and it confronts each of these with contrary evidence from the historical record, especially the 1776 to 1789 American state "law of the land" clauses. Along the way, this Article establishes that Due Process "life, liberty, or property" is best understood as a single term of art describing all interests to be protected by the state under a Lockean social contract. The Article also illustrates the practical effect of this competing view by examining the pre-Fourteenth Amendment "law of the land" case law from North Carolina.

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