What Does Originalism Have To Do With Civil Procedure? Presented by: Mrs. Sohoni Date: May 2, 2023 The Landscape Of Originalism - - Substance • Substantive Due Process • Religion • Guns • Commerce Clause • Nondelegation • Etc. Procedure • Ford • Mallory II. THE NON-ORIGINALISM OF CIVIL PROCEDURE Illustrations - Diversity Jurisdiction: Are citizens of D.C. citizens of a "state" within the original meaning of Article III? • - NO Diversity Jurisdiction: Are corporations "citizens" within the original meaning of Article • - NO Personal Jurisdiction: Does the International Shoe test for personal jurisdiction over non- residents derive from the original meaning of the 14th Amendment's Due Process Clause? • NO III. IMPLICATIONS FOR ORIGINALISM Variations Within Originalism - - - - - Operationalizing Originalism • Originalism Allows for "Construction," Not Just "Interpretation" • Originalism Allows Retention of Non- Originalist Precedent Justifying Originalism • Originalism Supplies Stability / Constraint • "Originalism is Our Law" If Shoe (1945) is "precedential" enough to merit retention’s • why not Blaisdell (1934)? • or Wickard (1942)? If Shoe is acceptable as a "construction" of the Due Process Clause... • ... why wasn't Roe? • ... and why isn't Obergefell? If Article III's "state" can be "constructed" to mean the District of Columbia... • … does that mean that D.C. can send two Senators and a Representative to Congress tomorrow? - If what matters is "stability" & "constraint"... • ... then doesn't civil procedure show that no originalism, too, can create "stability" & "constraint"?