The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgements
• Note to the Reader
• Introduction
• 1: Publius—a Split Personality?
• 2: Majority Rule and the Extended Republic Theory of James Madison
• 3: Separation of Powers and the Madisonian Model: a Reply to the Critics
• 4: James Madison and the Principle of Federalism
• 5: The Supreme Court, Judicial Review, and Federalist 78
• 6: Due Process, Liberty, and the Fifth Amendment: Original Intent
• 7: Abortion and the American Political Process

6

Due Process, Liberty, and the Fifth Amendment: Original Intent

INTRODUCTORY NOTE

This chapter illustrates a highly significant dimension of the way in which the Court, principally in this century and at an accelerating rate in recent decades, has assumed the enormous powers that render Publius’s teachings in Federalist 78 virtually obsolete. What follows might be considered a case study that traces one critical dimension of the transition from the Founders’ Court, pictured by Publius as the weakest and least dangerous of the branches, to the modern Court, arguably the most important and powerful branch of government. More specifically, we deal with the matter of substantive due process. But we do so only after examining the historical understanding of due process in the English and American traditions, as well as the meaning accorded liberty in the context of due process. Our investigation also touches upon the Fourteenth Amendment and the question of incorporation; that is, the application of the provisions in the national Bill of Rights to the states via the due process clause of the Fourteenth Amendment. Bearing in mind this range of concerns, let me turn by way of introduction to certain issues that I think deserve emphasis.

As, no doubt, many instructors of American government can attest, few things are more difficult than trying to explain “substantive due process” to students. The difficulty, from my perspective at least, resides in trying to explain the move from process to substance, from the how to the what—a shift implied in the term itself and explicit in its application. One must somehow provide intermediate assumptions or postulates, derived from the ordinary or “common sense” understanding of due process, that serve to join or link substance to process in a reasonable fashion. To put this another way, most individuals readily comprehend the notion of due process; they have an intuitive understanding of the term, even though they may lack knowledge of its specific requirements. But this intuitive understanding by itself does not embrace or suggest the necessary linkage.

On this score, I must confess that some of my difficulties in trying to convey the meaning of substantive due process flow from my own inability to grasp the connection. For reasons that will be spelled out in this chapter, I remain unconvinced by the conventional argument advanced to justify the Court’s use of substantive due process, which runs roughly as follows: The “Madisonian problem” (providing for republican government free from the ravages of majority factions) is not completely solved by the multiplicity and diversity of interests, representation, and institutional processes that assure delay and deliberation. Despite these protections, minorities are still victimized by unjust, oppressive, partial, or just plain stupid laws that are properly enacted but do not violate any specific provision of the Constitution. The “perfection” of the system, thus, consists in giving to the judiciary the power to invalidate such laws.

The attentive student will remember that, while acknowledging in Federalist 78 and elsewhere that laws of this type might indeed find their way onto the statute books, Publius stops short of arguing that the Court possesses the authority to nullify such laws. One reason for this is apparent to those who have a coherent understanding of the system; namely, such a “cure” could well turn out to be worse than the disease since it would grant enormous discretionary powers to the judiciary. In any event, such a remedy for factions could hardly be called “republican,” the only kind of remedy, Publius insists, consistent with the overarching principles of the proposed system (10:46).

The easy rejoinder to this observation is that the Fifth Amendment, with its “due process” clause, was added after the adoption of the Constitution and that, in spite of these reservations, it was intended to “perfect” the Philadelphia Constitution. In these terms the issue comes down to whether the due process clause was intended or designed to allow for judicial control over the legislature in the manner suggested in the argument above.

Now this concern readily lends itself to historical research for resolution, and most of what follows in this chapter deals with the development and traditional understanding of due process. In this endeavor, my primary concern is to determine whether the historical record and intentions would bear out the modern notions of substantive due process. I do so primarily with regard to the Fifth Amendment’s due process clause, but my findings go well beyond this.

The fact is that in the American system the unreasonableness or wickedness of legislation contested on due process grounds is never so clear-cut as the arguments for substantive due process assume, and this is precisely because legislative bodies simply are not inclined to act in an arbitrary and unreasonable manner contrary to the prevailing values of the society. Instead, what we normally find in cases of dispute are competing values, with the Court in its exercise of substantive due process giving priority to one set of values over another. And when the Court rejects the decision of the legislature, the presumption must be that the Court possesses knowledge of a finer, more elevated sense of justice, a special knowledge not accessible to the ordinary citizens or their representatives.

Naturally questions arise relative to the Court’s elevated sense of justice: What is its source and substance? What renders it superior to the conceptions of the people or the legislators? How precisely do legal training and practice or judicial experience provide such a refined and special insight into justice and the good? Just to ask these questions, in my judgment, is sufficient to indicate that the doctrine of substantive due process rests on extremely feeble foundations. And my view is borne out by looking at the uneven record of the Court in those instances where it has seen fit to overturn legislation on substantive due process grounds, beginning with its first excursion into this area, the Dred Scott case. That is to say, there is no reason to believe that the justices have ruled on the basis of a coherent, well-developed, refined, and enduring sense of justice; rather, most of their major decisions in recent decades are informed by and conform with the values articulated by the more “enlightened” sectors of the community—e.g., law school deans and professors, the editorial views of the “respectable” press and its minions—presumably preoccupied with realizing “social justice.”

To nullify or veto legislation on due process grounds, though scarcely justifiable on our showing, is the lesser of the evils associated with the Court’s use of substantive due process. As our final chapter will make clear, the Court has moved well beyond simply declaring legislative acts null and void; it has assumed legislative powers by reading into the “liberty” component of due process such rights as “the right of privacy” that heretofore has never existed, and then specifying in detailed fashion what the states must do to protect or advance these rights. This practice again raises questions about the source of the Court’s special insight into matters of rights and justice, this time at an even more fundamental level. How is it that the Court can see more clearly than the legislature into the requirements of justice and what it demands by way of public policy? And what is to prevent it from using this power for unjust or oppressive ends?

In sum, as we noted at the outset of this book, the Court has moved to a new plateau of power; one that places it on a level above the legislature in our system. This move clearly represents a drastic departure from the original design and the intentions of the Framers, and it is safe to say that the Constitution surely would never have been ratified if it had been understood that judicial powers could be employed in this fashion.

I think the substance of what follows in this chapter will show why it is that due process was never intended to be a limitation on the legislatures; its entire history, even through the ratification of the Fourteenth Amendment, demonstrates that it was intended as a limitation primarily on the judiciary and, to some extent, on the executive branch. It is somewhat ironic how the due process clause was turned on its head to provide the basis for judicial oversight of legislative actions.

With respect to “liberty” in the due process clause, I must emphasize that its meaning was clearly understood in terms of the ends or purposes of due process. Liberty was most relevant to due process in criminal cases and, as a consequence, it was defined in common law in terms of confinement, or a limitation on the movement of an individual. In brief, an individual could not be jailed without due process of law. Yet, I should remark in this connection about a matter I do not take up in this book: towards the end of the nineteenth century, for reasons that are not fully known, liberty came to have a broader and broader meaning. Liberty is now so broadly defined that it can serve as a justification for new rights whenever a majority of the Court is so inclined. This expanded conception did not gain official recognition until the Gitlow decision in 1925. Today, as we know, this “new” liberty, as the distinguished constitutional historian, Charles Warren, dubbed it, stands virtually unchallenged.

Finally, the developments traced in this chapter show another dimension of the inroads made by the progressivist morality with its emphasis on ends, even to the extent of undermining the legitimate republican processes spelled out in the Constitution. This entire process, as we shall see in the final chapter, culminates in the infamous Roe v. Wade (1973) decision.

DUE PROCESS, LIBERTY, AND THE FIFTH AMENDMENT: ORIGINAL INTENT

In the decades immediately preceding the convening of the first Congress in 1789, Americans were engaged in an examination of the meaning and nature of liberty with an intensity and thoroughness that have few, if any, parallels in history. From the early 1760s to the Declaration of Independence, the colonists sought to find justifications for their opposition to Great Britain’s policies towards the colonies, policies that they increasingly came to regard as oppressive and tyrannical. These justifications, which were premised on the value of protecting and advancing liberty, necessarily involved an examination of the relationships that should exist between ruler and ruled. They also entailed an examination from various perspectives concerning the foundations, power, and role of legitimate government, as well as the meaning and substance of liberty.1

Having gained independence, Americans then had to undertake the necessary and critical task of founding governments that would avoid the tyranny and oppression they had known. Moreover, these governments had to conform with the very standards and principles of legitimate government that had been used to judge the character of British rule. But there was a complication associated with this endeavor. The genius of the American people was avowedly “republican,” so that now rights and liberties had to be understood and protected, not in the context of the people versus a tyrannical king, but in one where the people themselves were ultimately sovereign.2 Their failure to adapt to this altered political environment in the new state constitutions, evident to many at the time,3 prompted even further inquiry into the content and nature of liberty and how it might best be preserved without sacrificing popular self-government.

Both of these phases of development were marked by a theoretical tension that has manifested itself subsequently in our political tradition and that is mirrored in the long-standing controversy over the meaning and scope of “due process” and the kind of “liberty” it protects. There are those who view the yearnings of our revolutionary period as a struggle for transcendent “rights,” who believe that the better part of our tradition has been a constant quest to achieve the noble and lofty ends associated with that period.4 These ends would, of course, include the self-evident “equality” of the Declaration of Independence, as well as “life, liberty, and pursuit of happiness.” At a more mundane level, they would also include, albeit in a more modern and expansive form, those derived from the British tradition and inscribed in its most fundamental documents—the Magna Carta, the Petition of Right, and the Bill of Rights.

There are those who interpret the British political experience and the American tradition from a markedly different perspective. Briefly put, they view British history in terms of a continuous struggle for popular government, for self-government rather than rule by a tyrannical monarch. And they look upon the American evolution largely from this same perspective.5 Thus, it is not at all surprising that, in arguing against a bill of rights, Alexander Hamilton could declare in The Federalist that the “WE, THE PEOPLE” of the Constitution’s preamble is a “better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of right” (84:443). Here Hamilton is echoing the view, implicit in the Declaration of Independence, that the most basic right of a people is self-government.

In theory the tension is evident: Popular or republican government and rights do not, on occasion, mix very well. Majorities may encroach upon rights, and rights can serve to inhibit majorities. But the tension in the American experience is a concrete and practical one. That is, understanding its origin and nature, as well as the terms in which it is manifest, involves examining not only our history, but the history of England as well. For example, any effort to determine the original meanings of “liberty” and “due process” (the two, for reasons that will become apparent later, cannot be entirely separated) involves asking questions that can be answered only by recourse to history. Then, too, differences over the meaning and applicability of these terms in the American context arise from other concerns. To begin with, are English rights, which evolved from grants or concessions by the crown, appropriate for a republican regime?6 To what extent, for instance, can these rights be incorporated into the American system without seriously undermining the republican principle? To what extent can we legitimately read constitutionalism, in the sense of a fundamental law that controls and limits government, into the British tradition? The relevance of these and like controversies in fixing the original meaning of “due process” and “liberty” will also be apparent in due course.

Beyond concerns of this nature is another that relates principally to the essence and nature of liberty as it was understood at the time of Founding and the place of due process within this understanding. More specifically, from the historical context from which it evolved, what can be said about the role of due process with respect to liberty? Was its function intended to be a limited one; that is, to guarantee against abuses in only well-defined and restricted areas of the ruler/ruled relationship or, conversely, was it meant to apply to this relationship in a more comprehensive manner, constituting a standard, so to speak, against which many, if not most, actions of the rulers should be judged? Likewise, in what sense was the word “liberty” used in the Fifth Amendment? Concretely, was it used in a narrow sense (e.g., freedom from confinement) or a broad sense to embrace the elements of a wider conception of liberty?

There is, to put these concerns in a slightly different context, a reciprocal relationship between “due process” and “liberty.” If, for instance, liberty is interpreted expansively—beyond, say, just the absence of physical restraint to encompass the elements of modern civil libertarianism—then the meaning of due process must also broaden to embrace new tests or standards to determine what processes of regulation relative to these liberties is “due.” 7 Or, “due process” might be interpreted to contain inherent concepts or principles— “justice,” “fairness,” “reasonability,” “equal protection” —that by themselves would expand the range of liberties to be protected by “due process.” 8

We can most profitably explore these and related matters by first surveying the meanings and concepts of liberty that prevailed at the time of Founding. As we shall see when we later turn to the English experience, “due process,” in an important sense, is a derivative from the widely accepted understanding of liberty and its essential attributes. With this background or overview, we can then examine “due process,” its meaning and its place within this generally accepted understanding of liberty. This should enable us to understand the sense in which “liberty” and “due process” were joined in the Fifth Amendment and the meaning attached to both.

Liberty: An Overview

During the founding period—for our immediate purposes, that period running from approximately 1760 to the adoption of the Constitution—liberty, and its character and scope, was almost always discussed in the social compact or contract framework of thinking. There are a number of plausible reasons why this framework enjoyed such popularity, not the least of them being that such compacts—far from being mere theoretical fictions or abstractions—were a real part of the American tradition, dating back to the Mayflower Compact in 1620.9 Consequently, the social contract approach, set forth systematically by serious political thinkers such as John Locke, fit in with the American experience. What is more—and a matter of some importance for an understanding of the roots of our Bill of Rights—William Blackstone in his Commentaries10 was able to superimpose the contractarian approach upon the British common law tradition and the rights contained therein. Indeed, Blackstone was able to place these rights and liberties into a social contract context consonant with republican government.

Not all these social contract theories were exactly alike. But they all contained, in one form or another, the same basic elements—a state of nature, laws of nature, the consent of the governed, and some form of contract. They were also alike with regard to the ends of the government established by the contract, namely, life, liberty, and property. The second paragraph of the Declaration of Independence with its emphasis on the “Governments deriving their just powers from the consent of the governed” and holding “Life, Liberty, and the pursuit of Happiness” to be “unalienable Rights” succinctly summarizes the prevailing thought.11 As Jefferson was to write some fifty years after the fact, he intended that the Declaration be “an expression of the American mind.” “All its authority,” he continued, “rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.” 12

If we probe a bit further into contract theory, we come to see the relationship between liberty and law. The following is a fairly typical picture of the state of nature encountered in the literature of this period: “In a state of nature, or where men are under no civil government, God has given to every one liberty to pursue his own happiness in whatever way, and by whatever means he pleases, without asking the consent or consulting the inclination of any other man, provided he keeps within the bounds of the law of nature. Within these bounds, he may govern his actions, and dispose of his property and person, as he thinks proper. Nor has any man, or any number of men, a right to restrain him in the exercise of this liberty, or punish, or call him to account for using it. This however is not a state of licentiousness, for the law of nature which bounds this liberty, forbids all injustice and wickedness, allows no man to injure another in his person or property, or to destroy his own life.” 13

This view of a conception of the state of nature corresponds in most particulars with the one that seemed to prevail at the time of Founding. It also prompts a serious question: Why would individuals ever consent to leave the state of nature to join together into a civil society? Why would reasonable men give up the relatively absolute liberty of the state of nature and opt for a more restrictive civil society? The answers invariably belie an idyllic state of nature marked by community, peace, and universal obedience to the natural law. If we take Locke’s account, which seems to embrace those set forth in the political commentaries of the founding era, civil society necessarily comes into being because of the “influence of unruly passions,” the disposition of some “to violate” or encroach “upon the liberty of others,” and the “superior power of bad men” to injure the “ weak,” “without the means of security or redress.” 14

In sum, by this account, disobedience to the laws of nature leads to injustice and therewith diminishes liberty in the state of nature. But this is only the manifestation of a more basic difficulty. In the last analysis, the incapacity of men to settle disputes according the precepts of the natural law in the state of nature poses the fundamental problem. As Locke points out, the reason why men must quit the state of nature arises from the equality that allows each “ the Executive Power of the Law of Nature.” This renders “Men . . . Judges in their own Cases” which, in turn, leads to “partiality and violence.” Not only will “Self-love . . . make men partial to themselves and their Friends,” but their “Ill Nature, Passion and Revenge will carry them too far in punishing others.” “ Civil Government, ” Locke concedes, “is the proper Remedy for the Inconveniences of the State of Nature”; that is, more exactly, for the “Confusion and Disorder” that arise from men judging of their own causes.15

In the vocabulary of the founding era, by quitting the state of nature men traded their “natural liberty” for “civil” or “political liberty,” a trade that was widely regarded as a bargain. James Wilson in his Lectures on the Law,16 certainly the most extensive and systematic treatment by any of our Founding Fathers relating to foundations of government, put this commonly shared belief in measured and restrained terms: “It will, I think, be found, that wise and good government ... instead of contracting, enlarges as well as secures the exercise of the natural liberty of man; and what I say of his natural liberty, I mean to extend ... to all his other natural rights.” 17 Others, particularly those who approached this issue from a Christian perspective, argued that true liberty could only be had through civil law. Aside from arguing that civil law properly enforced by “civil magistrates” was necessary to curb men’s “unbridled lusts” and to preserve the “public safety,” they emphasized the need for an orderly, predictable, and uniform application of laws that would encourage the promotion of “good”; protect the “liberties and privileges” derived from the natural, God-given laws; and permit individuals freely to choose their pursuits, “consistent with the public good.” 18

Escape from Arbitrariness: The Link between Theory and Practice

These observations are significant because they point to what is not only a precondition or sine qua non of liberty, but also one of its core ingredients. This is to say, natural liberty was not regarded as “true” or “real” liberty because of the uncertain and unpredictable application of the laws of nature in the state of nature. Moreover, an arbitrariness characterized the application of natural laws, particularly in those situations where individuals were allowed to judge their own cause.

To put this otherwise, at the time of the Founding there was almost universal acceptance of Montesquieu’s teachings concerning liberty and its character. “Liberty,” he wrote, “is a right of doing whatever the laws permit, and if a citizen could do what they forbid he would be no longer possessed of liberty, because all his fellow-citizens would have the same power.” 19 Aside from the fact that this stipulation carries with it certain important presumptions—e.g., that the laws must be duly enacted and known—its very terms deny that liberty could exist in a state of nature where individuals violate the laws of nature whenever it suits their interests. But, perhaps more to the point in this respect is Montesquieu’s association of “political liberty” with the subject’s “tranquility of mind” that arises “from the opinion each person has of his safety.” For this liberty to exist, he insists, “it is requisite the government be so constituted as one man need not be afraid of another.” 20

It is hardly surprising, then, that one proposition that emerges with unmistakable clarity from the thought of this era is that liberty and arbitrariness are incompatible with one another, that where arbitrariness prevails, “tyranny” is to be found. Indeed, it would be difficult to exaggerate the extent to which the absence of arbitrariness was considered to be the essence of liberty and a requisite for a legitimate government. The concern of those during the founding period was not, of course, that of moving out of a state of nature into a civil society in order to escape the arbitrariness associated with the exercise of “natural liberty.” Rather, the critical problem—as Montesquieu’s observations suggest—was how to fashion institutions and processes that would avoid the arbitrariness that was the bane of liberty. As Locke asked plaintively: can government be the “remedy” for the arbitrariness found in the state of nature when “one Man commanding a multitude, has the Liberty to be Judge in his own Case, and may do to all his Subjects whatever he pleases, without the least liberty to any one to question or controle those who Execute his Pleasure?” 21 Thus, with many others, Locke saw that leaving the state of nature was not by itself a cure for the problem of tyranny; an absolute monarchy scarcely constituted any improvement over this natural state. Clearly, his views on this score were influenced by the arbitrary and capricious rule associated with absolute monarchy, the very conditions that had prompted the development of rights and privileges in the common law.

The concern to avoid arbitrary government evidences itself at different levels during the founding period, if only because it had also been part of our experience as well during the colonial period. At the highest level, that involving the basic constitutional structures and powers, concerted efforts were made to provide for a “government of law, not of men,” a fact that accounts for the virtually universal acceptance of the separation of powers principle. Article 30 of the Massachusetts Constitution of 1780, part of a preamble of sorts setting forth the rights and liberties of the people, explicitly draws the connection between the separation of powers and a government of laws. “In the government of this Commonwealth,” it declares, “the legislative department shall never exercise the executive and judicial powers, or either of them. The executive shall never exercise the legislative and judicial powers, or either of them. The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” 22

Certain essays in The Federalist manifest the depth of the Founders’ concern to provide a “government of law,” as well as the relationship between this goal and the separation of powers. In Federalist 47, Madison’s most general discussion of the separation of powers, he sets out to show that the critics of the proposed Constitution are mistaken in their view that it provides for a dangerous blending of powers. Yet, he confesses at once that if the critics were correct “no further arguments would be necessary to inspire a universal reprobation of the system.” And his reasons for this he makes clear. Of the separation of powers, he writes, “No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” He declares, without any qualifications, that the accumulation of the legislative, executive, and judicial powers “in the same hands, whether of one, a few, or many ... may justly be pronounced the very definition of tyranny” (47:249).

The equation of the concentration of powers with tyranny is revealing. In Madison’s definition the mere existence or condition of such a concentration, by itself—quite apart from how or for what ends the powers are used—constitutes tyranny. Whether the powers are used oppressively or benevolently has no bearing on whether tyranny exists; their concentration alone is sufficient because such a condition would, in effect, establish a master/slave relationship with the ruled subject to arbitrary and capricious commands of the rulers.23 He quotes from Montesquieu to the effect that where the executive and legislative powers are joined “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.” Where the judicial power is united with the legislative, “the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.” Similarly, if the judicial and executive powers are united, “ the judge might behave with all the violence of an oppressor ” (47:251). In sum, and quite in keeping with the teachings of Montesquieu, Locke, and Aristotle (to name but a few), Madison regarded tyranny as a condition or state of affairs in which the ruled may be subject to arbitrary control by the rulers. The relationship between rulers and ruled in a system with a consolidation of powers is the same as that of masters to slaves in the sense that both the rulers and masters possess total and arbitrary authority over their subjects. And, though a ruler possessed of legislative, executive, and judicial powers may govern benevolently, this does not alter the condition of tyranny any more than a master by treating his slaves in a thoroughly enlightened manner abrogates the condition of slavery.

Now aside from providing for the rule of law, the separation of powers was viewed as a protection against legislative bodies’ passing oppressive laws. Because the administration of the laws would be the responsibility of an independent executive, the legislators—as well as their families, friends, and political allies—would be obliged to conform to the provisions of the law. This fact alone, it was believed, would serve as a powerful deterrent against the legislators’ passing oppressive laws.24 Madison makes this very point in Federalist 57 when he writes that a restraint upon the House’s passing “oppressive measures” is that its members “can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.” And he cautions, should “the vigilant and manly spirit which actuates the people of America—a spirit which nourishes freedom, and in return is nourished by it ... ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty” (57:296–97).

Liberty and Due Process: The English Legacy

While the Founders were certainly inventive and looked to the failings of the state governments for lessons on how to avoid both tyranny and oppression, they were also very, familiar with the English experience and the “rights” of Englishmen found in the common law, especially those that were intended to eliminate the arbitrariness that Locke and Montesquieu feared. That the colonists from the very outset considered themselves under protection of British law is evident from the Virginia Charter of 1606 which provided that the colonists and their descendants “shall have and enjoy all Liberties, Franchises and Immunities within any of our other Dominions, to all intents and purposes, as if they had been abiding and born within this our Realm of England or any other of our said Dominions.” 25 Similar language is to be found in all the charters that followed, the last being the Georgia charter in 1732.26 These provisions constitute one of the reasons that, in their disputes with the mother country prior to the revolution, the colonists could use provisions and principles of the common law and Parliamentary statutes to support their positions against the Crown.

To understand the nature of these rights and privileges, as well as the influence of the British legacy on the Founding Fathers, we must begin with the Magna Carta and, in particular, chapter 39 of its 1215 version.27 In modernized form this chapter reads: “No freeman shall be arrested, or detained in prison, or deprived of his freehold, or outlawed, or banished, or in any way molested; and we will not set forth against him, nor send against him, unless by the lawful judgment of his peers and [or] by the law of this land.” 28 After two reissues in 1217 and 1225, this provision and chapter 40 (“To no one will we sell, to no one will we refuse or delay, right or justice”) were merged into chapter 29 of the “official” version of the Magna Carta put on the statute books in 1297 by Edward I. While these provisions are universally regarded as the most significant portions of the original charter, chapter 20 (amercement “according to degree of offense”) and chapter 28 (compensation for taking “corn or other chattels”) do embody principles that are articulated later in more expansive form.

Clearly the chief provisions of chapter 39 were intended to promote the conditions of liberty that we have discussed above. In fact, the very objective was to curb the arbitrary and capricious actions of King John (presumably as well as future monarchs) that had resulted in punishment without recourse to processes, such as proper notification, hearing, or judicial judgment, which were part of the common law or of customs so deeply embedded and so well understood as to enjoy the status of law. What is more, as Raoul Berger points out, “judicial judgment” tacitly assumes an “antecedent law ... the violation of which” gives rise to such judgment. Thus, chapter 39 tacitly embraces the Roman maxim that “no person shall be punished except in pursuance of a statute which fixes a penalty for criminal behavior.” In this way, chapter 39 plays a key role in subordinating the king to the laws.29

Largely through the efforts and writings of Edward Coke, the Magna Carta and its provisions, particularly chapter 39, have played a central role in both British and American constitutional development. Coke must be credited with advancing the notion that the Magna Carta constituted a fundamental English law whose provisions, amplified by judicial interpretations, served as a restraint on the king’s prerogatives. Coke must also be credited with supplanting the phrase “law of the land,” found in chapter 39 of the original Magna Carta, with the more modern expression “due process of law.” 30 In his Second Institute —a commentary on the Magna Carta published after his death by order of the House of Commons in 1642—Coke amplified the meaning of chapter 39. He maintained that since the time of Edward III (1355) “the true sense and exposition” of the phrase “by the law of the land” has been equated with “due process of law.” Such he derived from the statute enacted by Parliament under Edward III which provided “that no man be taken, imprisoned, or put out of his free-hold without process of the law; that is, by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ originall of the common law.” The same statute declared moreover that “No man of what state or condition he be, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death, without he be brought to answer by due process of law” wherein “due process of law” is taken to mean “due process of the common law.” 31

Coke’s views found expression in the Petition of Right (1628), which was forced upon Charles I by Parliament to curb the royal prerogative by prohibiting arbitrary imprisonment, taxation without consent, misuse of martial law, and the unauthorized billeting of soldiers and sailors. Sections 3 and 4 of its provisions, however, are the most theoretically significant. Section 3 expressly invokes the provisions of chapter 39 of the Magna Carta against these practices, while the fourth section sets forth Coke’s reformulation of the “law of the land” clause found therein by declaring “That no man of what estate or condition that he be, should be put out of his land or tenements, nor taken nor imprisoned, nor disinherited, nor put to death without being brought to answer by due process of law.” 32 In Coke’s commentary on the Magna Carta in his Second Institute,33 especially that on chapter 29 of the 1297 version (the original chapter 39), are to be found accepted principles and practices of due process—indictment by grand jury, trial by “law of the land,” and habeas corpus.

Aside from the fact that Coke’s “due process” and its application were clearly designed to curb the arbitrary powers of the monarch—and this in keeping with the essence of liberty as it was understood at the time of our Founding—two other matters warrant our attention, particularly in light of subsequent developments. First, as we have already noted, Coke’s substitution of “due process of law” for “law of the land” that we find in the Petition of Right did not take hold on this side of the Atlantic. This fact is of considerable significance because, to anticipate a bit what follows, this “law of the land” phraseology eventually provided a plausible opening for the argument that there were fundamental laws—well beyond any associated with mere procedures—that, though not expressly set forth in the Constitution, serve to limit the scope of legitimate lawmaking authority. Put another way, “law of the land,” far more readily than “due process,” opens up avenues for extensive claims against the state on any number of grounds: e.g., that “the law of the land” embodied in the Magna Carta is derived from “right reason” or from “natural law” that endows it with a status superior to that of ordinary law; that there is an “animating spirit” behind “the law of the land” that constitutes a standard for judging the validity of ordinary statutes.34 “Law of the land” has, in fact, been interpreted in this manner in the American context, originally to protect “vested rights.” 35 And, while Coke’s equation of “due process” and “law of the land” might have originally served to inhibit any such line of development, the equation eventually proved useful because whatever fell under the scope of “law of the land” —including, of course, liberties of various kinds—could, on the authority of Coke, be squeezed back into “due process.” 36

We shall have occasion to analyze in greater detail the distinctions between “due process” and “law of the land” when considering the meaning of the due process clause in the Fifth Amendment and its relationship to other provisions in the Bill of Rights.

Our second observation is this: leaving the “due process” / “law of the land” equation to one side—as well as the question whether such an equation is entirely legitimate—Coke subscribed to the proposition that the Magna Carta embodied fundamental law; that its provision did limit sovereign authority, including Parliament. As a member of Parliament in his battle against Charles I, he would declare:

In this connection, his opinion in Bonham’s case, nullifying an act of Parliament, is usually cited. In this instance, however, Coke made no reference to the Magna Carta, relying instead on “common right and reason” which he closely associates with the common law.38

It would be wrong, however, to believe that Coke’s notions about fundamental law (in the sense he meant) and “common right and reason” as a limitation on Parliament were widely shared either in Great Britain or the colonies. To be sure, in Lechmere’s case (1761), James Otis cites and employs Coke’s reasoning to argue that the Parliamentary act authorizing the use of Writs of Assistance was null and void, contrary to the fundamental principles of the Magna Carta and English constitutional practice.39 Yet Otis’s position is remembered precisely because it was relatively novel in this era.

What is more, within the confines of the British constitutional framework as it was generally understood after the Glorious Revolution of 1688, Parliament was considered supreme. Blackstone, whose Commentaries in the later part of the founding era had supplanted Coke’s Second Institute, declared that “The Power and jurisdiction of Parliament” was “transcendent and paramount.” “It hath sovereign and uncontrollable authority,” he wrote, “in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military maritime, or criminal; this being the place where that absolute despotic power, which must in all government reside somewhere, is entrusted by the constitution of these kingdoms.” “True it is,” he observed, “that what the parliament doth, no authority upon earth can undo.” 40

What is interesting in this connection is the Declaration and Resolves of the First Continental Congress which we have already had occasion to allude to. Because Parliament was recognized as supreme, the colonists had to find grounds to question its legitimacy by using a standard outside of the British constitutional framework. These grounds are set forth at the outset of this document and contain elements of social contract thought such as the “immutable law of nature” and the claim that the colonists are entitled to “life, liberty, & property” of which they cannot be deprived “without their consent.” 41 What is notable here is the three-tier claim of the colonists that blends together this transcendent “natural law” with the common law rights and those derived from the Magna Carta, as well as the colonial charters and compacts. That is, the rights they claim are adduced from “the immutable laws of nature, the principles of the English constitution, and the several charters or compacts.” 42

This is an interesting linkage because it unites the theoretically oriented contract approach with the more down-to-earth common law evolution as a grounding for rights, a linkage that was to be expected given the dual nature of thinking about the sources of rights and privileges. Perhaps more important, this approach “sanctifies” the common law rights; it gives them a higher law status, not an unimportant transmutation in light of later developments we will discuss.

Now the issue raised by this mode of thinking ultimately goes beyond the question of Parliamentary supremacy and the arguments posed by Otis. The colonists certainly did have a good case in arguing (as they did in the Declaration and Resolves and elsewhere43 ) that taxation without representation was clearly contrary to established English constitutional practice. But this—and, of course, the more general argument that any legislation without colonial representation violated the colonists’ liberties and privileges—posed a more fundamental concern, namely, whether the British constitutional framework could ever insure the liberties and rights of the colonists. They raised the issue, that is, whether the colonists could ever enjoy liberty under the authority of Parliament or whether separation with self-government was the only feasible solution. In short, this protest and others brought into question the very legitimacy of the relationship between the colonists and Great Britain within the framework of the British constitution.44

Law of the Land: The American Experience

The substance and full impact of the English heritage can be seen by turning to the American colonial experience. First, in this endeavor, we cannot help but see that Coke’s teachings had an enormous impact on colonial thinking.45 Coke’s influence is most evident in William Penn’s The Excellent Privilege of Liberty and Property Being the Birth-Right of the Free-Born Subjects of England (1687). This publication, intended to acquaint the citizens of Pennsylvania with their liberties, presents a commentary on the Magna Carta that derives almost entirely, albeit indirectly,46 from Coke’s Second Institute. Its introductory paragraphs are by themselves noteworthy for indicating both the ends and scope of English liberty as it was understood at this time. “In France, and other nations,” Penn remarks, “the mere will of the Prince is law, his word takes off any man’s head, imposeth taxes, or seizes any man’s estate, when, how and as often as he lists; and if one be accused, or but so much as suspected of any crime, he may either presently execute him, or banish, or imprison him at pleasure; or if he will be so gracious as to proceed by form of their laws, if any two villains will but swear against the poor party, his life is gone; nay, if there be no witness, yet he may be put on the rack, the tortures whereof make many an innocent person confess himself guilty, and then, with seeming justice, is executed.” 47

Penn immediately contrasts this situation to the one that prevails in England where “the Law is both the measure and the bound of every Subject’s duty and allegiance, each man having a Fundamental Right born with him, as to freedom of his person and property in his estate, which he cannot be deprived of, but either by his consent, or some crime, for which the law has imposed such a penalty or forfeiture.” In this vein he goes on to point out that the “Kings take a solemn oath ... to observe and cause the laws to be kept” and that the judges are bound “to do equal Law and Right to all the King’s Subjects, rich and poor, and not to delay any person of Common Right.” 48

Still another characteristic of the American colonial experience involved setting forth in some detail “laws of the land,” primarily with regard to judicial and executive processes. The Concessions and Agreements of West New Jersey (1677) is particularly notable among the early charters in presenting a collation and refinement of the Magna Carta’s guarantees. For example, its chapter XVII provided “That no Proprietor, freeholder or inhabitant of the said Province of West New Jersey, shall be deprived or condemned of life, limb, liberty, estate property or any wayes hurt in his or their privileges, freedoms or franchises upon any account whatsoever, without a due tryal, and judgment passed by twelve good and lawful men of his neighbourhood first had: And that in all causes to be tryed and in all tryals, the person or persons arraigned may except against any of the said neighbourhood, without any reason rendered (not exceeding thirty five) and in case of any valid reason alleged, against every person nominated for that service.” 49 Other chapters specify additional elements of a “due tryal.” Chapter XIX provided that there be “three Justices or Commissioners who shall sitt with the twelve men of the Neighbourhood with them to heare all causes and to assist the said twelve men ... in case of Law.” But the justices or commissioners were bound to the “Judgment as they shall receive from” the jurors, “in whom only the Judgment resides, and not otherwise.” 50

In the ensuing decades to the time of the adoption of the Constitution, these procedural guarantees were refined and expanded. The provisions of the more elaborate state constitutions adopted soon after the Declaration of Independence illustrate the extent of this development. The Massachusetts Constitution of 1780, for instance, provided, “No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially, and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election.” 51 Article IX of the Pennsylvania Declaration of Rights, drafted four years before its Massachusetts counterpart, fixed upon the same procedural guarantees in only slightly different language: “That in all prosecution for criminal offences, a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favour, and a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty; nor can he be compelled to give evidence against himself.” 52

There are other similarities between the bills or declarations of rights of the states that followed upon the Declaration of Independence. In fact, as the Pennsylvania provision cited immediately above would suggest, the more extensive listings contained those provisions that were later incorporated in the national Bill of Rights—compensation for property taken for public use, provision against unreasonable searches and seizures, the right to bear arms, protection against cruel and unusual punishment, and trial by jury in criminal cases. What is apparent in all of these bills of rights to one degree or another, however, is the influence of rights, principles, and procedures that had evolved in the English experience over the centuries and whose development was traceable to the Magna Carta.

The West New Jersey agreement raises another highly significant question that, as we shall see, bears upon the matter of the drafters’ intentions regarding the due process clause of the Fifth Amendment, as well as the more general controversy surrounding the constitutional scope of judicial authority to limit legislative power. The agreement, that is to say, expressly declares that fundamental laws such as those cited above pose limitations on legislative authority. Chapter XIII declares “THAT the common law or fundamental rights and privileges of West New Jersey, are individually agreed upon by the Proprietors and freeholders thereof, to be the foundation of the government, which is not be altered by the Legislative authority, or free Assembly hereafter mentioned and constituted, but that the said Legislative authority is constituted according to these fundamentals, to make such laws as agree with, and maintain the said fundamentals, and to make no laws that in the least contradict, differ or vary from the said fundamentals, under what pretence or allegation soever.” The next chapter endeavors to put some teeth in this provision with the following warning: “BUT if it so happen that any person or persons of the said General Assembly, shall therein designedly, willfully, and maliciously, move or excite any to move, any matter or thing whatsoever, that contradicts or any ways subverts, any fundamentals of the said laws in the Constitution of the government of this Province, it being proved by seven honest and reputable persons, he or they shall be proceeded against as traitors to the said government.” 53

With the West New Jersey charter we have an early example of constitutionalism, American style; that is, the notion of a “fundamental law” that cannot be altered or abridged by the institutions created by this fundamental law. By the time Publius writes, he can speak of a “distinction . . . well understood in America,” and not so well understood elsewhere, “between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government” (53:277).54

Limitations of this nature on legislative authority to alter the modes of procedure in criminal (or, for that matter, civil cases) was far from universal. The exceptions are not hard to come by.55 The Massachusetts Body of Liberties promulgated in 1641—a year before the publication of Coke’s Second Institute —contained many of the guarantees that had over the centuries evolved from the Magna Carta and the common law. Among the Rights Rules and Liberties concerning Juditiall proceedings is the right to a hearing in all criminal cases; punishment proportionate to the crime; and protection against double jeopardy, self-incrimination, and punishment “inhumane Barbarous or cruel.” 56 But these are statutory guarantees against, let us take great care to note, the judiciary—guarantees that can be enlarged, changed, or modified by the legislative body. The feeling prevailed, it would seem, that the people were ultimately the best safeguard of the common law procedures. Such a view finds expression in the very first article which embraces chapter 39 of the Magna Carta: “No mans life shall be taken away, no mans honour or good name shall be stayned, no mans person shall be arested, restrayned, banished, dismembred, nor any wayes punished, no man shall be deprived of his wife or children, no mans goods or estaite shall be taken away from him, nor any way indammaged under colour of law or Countenance of Authoritie, unlesse it be by vertue or equitie of some expresse law of the Country waranting the same, established by a generall Court and sufficiently published.” 57

The restatement of chapter 39 of the original Magna Carta—the use of “law of the land,” rather than Coke’s reformulation, “due process” —was customary in the colonial charters and in the later state constitutions. In the Virginia Bill of Rights, adopted even before the Declaration, we find in Section 8 “that no man be deprived of his liberty except by law of the land, or the judgment of his peers.” 58 Article XXI of the Maryland Declaration of Rights corresponds even more closely to the original Magna Carta formulation: “That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land.” 59 This article concludes, “And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunity, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” 60 Connecticut, interestingly enough, in its 1776 Declaration of Rights, reverts to the language of the Massachusetts Body of Liberties: “No Man’s Honor or good Name shall be stained: No Man’s Person shall be arrested, restrained, banished, dismembered, nor any Ways punished: No Man shall be deprived of his Wife or Children: No Man’s Goods or Estate shall be taken away from him, nor any Way indamaged under the Colour of Law, or Countenance or Authority: unless clearly warranted by the Laws of this State.” 61

We even find this formulation used in perhaps the most significant document enacted under the Articles of Confederation, the Northwest Ordinance. Article II of this Ordinance—which, it is of some significance to note, was passed in July 1787 at a time when the Philadelphia Convention was hammering out the Great Compromise that made possible the Constitution—provides: “The inhabitants of the said territory shall always be entitled to the benefits of the writs of habeas corpus, and of the trial by jury ... and of judicial proceedings according to the course of the common law....no cruel and unusual punishment shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land.” 62

The “law of the land” provision was generally understood to mean the laws of the colonies or states. And save as certain guarantees were made of the fundamental law or constitution, such as we found in the West New Jersey agreement, it was understood that the legislatures had discretion.63 In fact, “law of the land” provisions, as the foregoing discussion makes clear, had the effect of limiting the judiciary. And this was so whether the “laws” were “fundamental,” possessing constitutional status, or not. But, as we shall see, in turning to the Fifth Amendment’s due process clause, the modern understanding, as articulated by the Supreme Court in relatively recent decades, turns this accepted view on its head.

The Fifth Amendment: Liberty and Due Process

The debate over the provisions that now constitute the Bill of Rights was neither extensive nor particularly informative. On June 8, 1789, Madison set forth those amendments that in his view would be “proper” for the Congress to recommend to the state legislatures. These recommendations were presented in nine major sections, each section constituting an amendment that was to be inserted or incorporated into the Constitution, not added to it. In all, the amendments embraced nineteen major distinct areas of rights that, when broken down into particulars, contained thirty-two specific rights. Thirty of these rights were mentioned at one point or another in the amendments recommended by the state ratifying conventions.64

Of the nine sections of Madison’s proposal, the fourth was by far the longest and most involved. It was to be inserted into the Constitution in Article I, Section 9, between clauses 2 and 3 (i.e., between the protection of habeas corpus and the prohibition on bills of attainder and ex post facto laws). In it can be found most of the rights and provisions that now constitute the Bill of Rights, ranging from freedom of religion and press to the equivalent of what is now the Ninth Amendment. The sixth paragraph of this section, reads: “No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.” 65 This paragraph was reformulated principally by the Senate into what is now the Fifth Amendment; the only significant change resulting from the House consideration concerned the confinement of the self-incrimination privilege to criminal cases.

Later, in the ninth paragraph, certain procedures in criminal cases were spelled out in terms very similar to the existing Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.” 66

While the Fifth Amendment would seem to flow as matter of course from the British and American traditions outlined above, controversies have arisen over the precise meaning of the “due process” clause, controversies that bear upon the question whether both procedural and substantive “rights” and “protections” should be read into “due process” or “liberty.” These issues are somewhat interrelated and, as we have indicated above, arise out of Coke’s approach to the Magna Carta and its status in the English tradition.

Law of the Land and Due Process. As we have already had occasion to remark, it is very doubtful that “due process” can be equated with “law of the land” on the grounds that “law of the land” embraces more than “due process.” Raoul Berger musters several leading authorities to this effect, and the careful research of Keith Jurow would certainly seem to bear him out.67 As we noted earlier, Berger argues that the expression “law of the land” embraces something more than the “mere mode of trial.” Citing Charles McIlwain, he contends that the “law of the land” phrase “was ... employed in a wider sense, i.e., a trial in accordance with the ‘law of the land.’ ” On McIlwain’s showing, according to Berger, “the chief grievance of the barons was the king’s seizure of their persons without first convicting them of some offense in his curia”; that is, with the lack of process, not with the abuse of process. Berger concurs with McIlwain’s conclusion that “lawful judgment of his peers” —the companion phrase to “law of the land” —was to “preclude attacks ‘except after a judgment obtained in the ordinary course, i.e., by a judicium parium.’ ” And these proceedings, as we have pointed out, presuppose an antecedent law.68

The important point in this account, however, is that, given its origins, the expression “law of the land” as it was used in the colonial charters and state constitutions was not intended to limit the legislatures; instead, the expression “law of the land” embraces the laws duly enacted by the legislature that apply to executive and judicial proceedings. One of the clearest expressions of this view is that of Attorney General Haywood of North Carolina in speaking to the status of the “law of the land” provision in the North Carolina Constitution in 1792. He defines this provision as “a law for the people of North Carolina, made or adopted by themselves by the intervention of their own Legislature.” 69 He points out that at that time “the lex terrae of North Carolina” consisted “partly of the common law, partly of customs, partly of the acts of the British Parliament received and enforced here, and partly of the acts passed by our own Legislature.” But, in his view, the legislature was free to modify or eliminate the other elements of the lex terrae —in other words, and contrary to what was being urged by others, the lex terrae provision posed no limitation on the authority of the legislature. And, in so doing, he emphasizes the absurdity that inheres in regarding the “law of the land” clause as a limitation on legislative authority.

“All capital punishments,” he continued, “ordained by the statute law for murder, rape, arson, etc., would be done away, and every malignant passion of the human heart let loose to roam through the land, unbridled by fear, and free from all manner of restraint except those very ineffectual ones the common law imposes.” 71

This position, it would appear, was widely accepted before the adoption of the Constitution.72 But it was challenged—and sometimes successfully—by those who regarded “law of the land” as a limitation on legislative authority, particularly with regard to the regulation of property. The development of the notion of vested property rights, in large part traceable to viewing the “law of the land” provisions in the state constitutions as limiting the legislatures,73 can be seen in an 1805 decision by the North Carolina Supreme Court that effectively turned the earlier view of “law of the land” on its head.74 In this case the majority expressly rejects the “insistence” that “the term, ‘law of the land,’ does not impose any restrictions on the Legislature, who are capable of making the law of the land” and that, moreover, the provision “was only intended to prevent abuses” on the part of the executive and judicial branches.75 To this contention, the Court responds:

It concludes from this that the “clause is applicable to the Legislature alone, and was intended as a restraint on their acts (and to presume otherwise is to render this article a dead letter).” 77

While this mode of interpretation rendered the “law of the land” clauses in the state constitutions an avenue through which the courts could limit legislative authority in the domain of property “rights,” 78 it also provided the grounds upon which the courts could eventually scrutinize the constitutionality of legislation that touched upon “liberty.” 79 In this fashion, the authority of the judiciary was greatly expanded, a rather paradoxical development in light of the fact that the “law of the land” clause recognized and enshrined legislative supremacy and was designed as a control upon the executive and judicial branches.

In any event, the national Bill of Rights lacked any “law of the land” clause; instead the Fifth Amendment provided for “due process” of law. This fact is somewhat surprising in light of the universal use of “law of the land” in the state constitutions and declarations of rights at the time the Fifth was drafted. It is even more surprising because only one state ratifying convention (New York), in setting forth recommendations for rights to be incorporated into or added onto the Constitution, used the term “due process.” This recommendation read: “That no person ought to be taken imprisoned or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of law.” 80 The Virginia proposal provided: “That no freeman ought to be taken, imprisoned, or disseised of his freehold, liberties, privileges or franchises, or outlawed exiled, or in any manner destroyed or deprived of his life, liberty or property but by the law of the land.” 81 The North Carolina recommendation was identical save that it provided “but by trial by jury, or by the law of the land.” 82 The minority report of the Pennsylvania ratifying convention, while leaving out “life” and “property,” conformed very closely to the wording in most of the state constitutions, “no man be deprived of his liberty, except by the law of the land or the judgment of his peers.” 83 All of these specific proposals were located among other provisions relating to trials and prosecutions, provisions which, for the most part, were mere restatements of common law guarantees such as the right to demand “the cause and nature” of the accusation, a “fair and speedy trial,” and protection against self-incrimination. This placement would strongly support the proposition that the “liberty” protected by the Fifth Amendment was a personal liberty that conformed with Blackstone’s definition, “the power of locomotion, of changing situation, or removing one’s powers on to whatsoever place one’s own inclination may direct, without imprisonment or restraint.” 84

Nevertheless, as we have remarked, Coke’s equation of “due process” and “law of the land” eventually comes into play to provide the basis for a more expansive view of liberty and due process. In 1856, after Justice Curtis equated the “law of the land” with “due process” on the authority of Coke’s Second Institute,85 the national judiciary had unwittingly embraced the framework of reasoning that would now allow it to use “due process” at the national level to limit Congress in the same way as some state courts had used the “law of the land” clauses to curb the state legislatures. The full effect of this particular decision and the potential it held for the expansion of judicial power, however, were not felt until the adoption of the Fourteenth Amendment and the eventual interpretation of its “due process” clause as an extension of and in conformity with the tenor and spirit of certain expansive interpretations given to states’ “law of the land” clauses.86

Due Process, Intent, and Redundancy. Questions of another nature have surrounded the scope of the due process clause of the Fifth Amendment. If it is viewed, as many are wont to do, expansively, as including at a minimum all the procedural guarantees found in the Bill of Rights, then serious problems arise. Specifically, if we accept this expansive view, then we must be prepared to explain why the drafters expressly provided for “due process” as well as indictment by grand jury and protection against double jeopardy and self-incrimination in the same amendment. Why, in other words, this redundancy, if indeed they clearly understood “due process” to embrace these other common law rights? What is more, the Sixth Amendment guarantees trial by jury in criminal cases, along with a series of other “rights” that are, in the main, taken from the common law. Why, again, this redundancy? In sum, on its face, this would seem to amount to an unnecessary and double protection of “due process,” a needless redundancy that we should be very hesitant to attribute to the drafters of these amendments in the absence of compelling reasons.

This difficulty, of course, does not arise if we take the traditional, narrow view of “due process.” Clearly if the drafters conceived of “due process” in terms of its essential principles—notice and hearing—then they surely would have realized that any number of processes or procedures could satisfy its requirements. If this is the case, we can see why they would have felt constrained to provide for indictment by grand jury since this process, while it conformed with the demands of “due process,” was not one of its indispensable elements. And, if this was the case with indictment by grand jury, which had traditionally been so closely associated with due process, then it most certainly explains why other provisions of the Bill of Rights—e.g., no cruel or unusual punishment and protection against self-incrimination and double jeopardy—also were not considered inherently necessary for due process. Such an interpretation would follow from the reasoning of Justice Stanley Matthews in Hurtado v. California (1884) that adheres to the common-sense injunction against interpreting any part of the Constitution, especially the provisions of key amendments, as superfluous.87

But William Crosskey offers another interpretation of “due process” that derives from the fact that the “presentment or indictment by grand jury” provision of the Fifth Amendment was known to be an element of Coke’s definition of due process, “indictment and presentment of good and lawful men, and trial and conviction in consequence.” 88 This redundancy, he holds, “mandatorily require[s] ” that a different meaning be given to “due process” as it is used in the Fifth Amendment. What is equally certain to Crosskey is that the phrase cannot be read in such an expansive fashion as to embrace the whole range of the common law procedures relating to criminal procedures. Beyond the fact that such an interpretation would render the specification of common law rights stipulated in the Bill of Rights superfluous, it would serve to prevent Congress from making any changes whatever in the common law procedures. Improvements or corrections of such procedures would, using this view of its meaning, require constitutional amendments.

Crosskey holds that “the phrase ‘due process of law’ . . . simply means ‘the appropriate process of law’ in a general way and contemplates various subcategories of ‘propriety’ thereunder.” 89 Such an interpretation, he believes, “completely fits the entire documentary context.” 90 On his showing, the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments provide “specific guarantees” to “particular phases” of the legal processes with which “due process,” traditionally understood, was intimately associated in the common law.

The “sub-categories of ‘propriety’ ” to which Crosskey refers actually serve to illustrate the role of the “due process” clause. The first category of “due process” consists of those processes marked out in the various amendments of the Bill of Rights. These fixed, constitutionally defined process guarantees are, he points out, of “two kinds: those that prescribe particular elements of Common Law ‘process’ and those that enjoin modes of ‘process,’ as to particular matters, which the framers of the amendments regarded as desirable, even though the Common Law did not require them.” 91 But wide-ranging as these processes are, they do not cover all the phases or aspects of process. The “due process” clause of the Fifth Amendment, thus, is intended to apply primarily to those phases of the legal processes or concerns involving “life, liberty, and property” not specifically dealt with by the relevant procedural guarantees in the Bill of Rights.

At this juncture, in effect, Crosskey’s analysis comes around to join with that of those who take the “narrow” view of “due process.” More exactly, the “due process” of the Fifth Amendment would require “fair” and “appropriate” processes in all cases involving “life, liberty, and property.” The test of “fairness” and “appropriateness” of the processes would, according to Crosskey, “first come down to whether the ‘process’ at issue in a particular case is one unforbidden by the Constitution.” Beyond this a second-level test would be whether the procedures are “supported by ‘applicable’ precedents at Common Law” at the time the Fifth Amendment was adopted. Finally, if a process is unforbidden by the Constitution, but without precedent in the common law, then the #x201C;due process” clause of the Fifth Amendment requires that it meet standards of “reasonableness” and “fairness.” 92

The practical difference between the “narrow” view of the “due process” clause of the Fifth Amendment—such as that endorsed in Hurtado —and Crosskey’s comes down to what can legitimately be “incorporated” and applied to the states via the “due process” clause of the Fourteenth Amendment.93 But to the question whether “due process” of the Fifth Amendment expands the powers of the courts, both are in substantial agreement. Berger concludes that it is a “perversion of ‘due process’ or of the ‘law of the land’ to apply either for the judicial overthrow of legislation,” 94 and Crosskey asserts that “if the words of the clause [ “due process” of the Fifth Amendment] are heeded, there is, of course, no right to review the substantive acts of Congress at all.” 95 Both see the “due process” provision as placing a requirement or limitation primarily on the courts “because,” as Crosskey remarks, “the subject of ‘appropriate legal process’ relates directly and especially to the proper discharge of the judicial functions.” 96 And both can see the courts’ discretionary role in nullifying acts of Congress under the “due process” clause as very confined; namely, that of judging the “appropriateness” or “reasonability” of the procedures Congress might stipulate that are, to use Crosskey’s framework, “ unforbidden” by the Constitution but lack common law precedents.97

To this point we have not dealt with the meaning of “liberty” as that word is used in the “due process” clause. Our discussion of “due process” (and “law of the land”) renders the nature of “liberty” protected fairly obvious. No matter how we interpret “due process,” narrowly or expansively, the focus is clearly on judicial processes, particularly in criminal cases. Consequently, the English and American uses of “liberty” in the context of “due process,” up to and well beyond the Founding, clearly support Blackstone’s definition of “due process” “liberty,” i.e., an individual’s freedom of movement. Nor can “due process,” on either of these approaches, be stretched to embrace a wider or more comprehensive view of liberty that would give the courts considerable latitude in reviewing the constitutionality of legislation. For example, despite the differences between the “narrow” and “broad” conceptions of what “due process” was understood to embody at the time of Founding, both would hold that the liberties contained in the First Amendment were not among those for which its guarantees were intended.98

Substantive Due Process

These views of due process and liberty clearly do not correspond with the notions of due process and liberty advanced by our courts in recent decades. And the question thus arises: could it be that both views are too constrictive? That neither one captures the full intentions of the drafters, intentions that support and justify the current, more expansive, conceptions of “liberty” and “due process”?

The answer, for reasons of a different character, would clearly seem to be “no.” To see why the answer seems so clear, let us first turn to certain important elements of the Framers’ political thinking. To begin with, and this is often overlooked, the Framers did not place a great reliance on the courts to preserve liberties or to protect minority rights.99 We have already pointed out how they relied upon the separation of powers to provide for rule of law and to protect against arbitrary and capricious rule, the essence of tyranny. As for the problem of oppressive or factious majorities, Madison’s prescription—fully set forth in The Federalist, his letters, and comment to the Philadelphia Convention—is the extended republic with a multiplicity and diversity of interests. In his view, this multiplicity and diversity would render a combination of a majority around interests detrimental to the rights of individuals or minorities highly unlikely. Indeed, at the very end of Federalist 10, the most widely read and cited of these essays, he writes: “In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government” (48). Later, in Federalist 51, he reiterates this basic proposition: “in the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good” (269). In fact, in this same essay, he specifically rejects the notion that a “will in the community independent of the majority” can or should protect minorities. “This, at best,” he observes, “is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major as the rightful interests of the minor party, and may possibly be turned against both parties” (268).

These considerations may seem only tangentially related to the questions surrounding the scope of “due process” and its relationship to “liberty.” Yet, they bear directly upon these matters. In Federalist 48 at the start of his discussion of how the separation of the branches provided for in the Constitution can be maintained, Madison felt it necessary to reorient his readers to the political context in which they lived. The “danger” to their “liberty,” he informs them, is no longer to be found in the “overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority.” Instead, in a “representative republic,” he warns, they “ought to indulge all their jealousy and exhaust all their precaution” against the legislative authority because it is “inspired by a supposed influence over the people with an intrepid confidence in its own strength” and “everywhere extending the sphere of its activity and drawing all power into its tempestuous vortex” (255–56). In other words, in republics the legislative assemblies possessed the potential to be the counterparts of the tyrannical monarchs in the British tradition. To prevent the realization of this potential is the very reason that the Framers divided the legislature in two, provided for life tenure for judges, and equipped the president with the veto power. But their solution provided for more than this. To recur to the “reflexive” principle, it provided as well that the legislators, like other citizens, would be subject to the laws they enacted. As a consequence, those of the founding era could place a good deal of confidence in the legislature—that, for instance, its members would not deny due process, if only because they, their family, friends, or political supporters might very well have to pay the consequences. Or, to put this another way, the Founders had no substantial reason to fear that legislative bodies would pass laws that would randomly operate to deprive individuals of the protection of due process. To do so would probably result in self-inflicted injustice.

Still another fact that speaks against the proposition that the drafters of the Fifth Amendment held to the more expansive conception of “liberty” and “due process” adopted by the courts in recent decades is, simply, the absence of any extended discussion or debate over the terms of the Fifth Amendment in the House of Representatives at the time the Bill of Rights was proposed.100 If “due process” was considered a general authorization for the courts to substitute their will for that of the legislature on substantive matters of policy or if “liberty” was conceived of as embracing far more than simply the absence of physical restraint, then it is utterly inconceivable that there would not have been extended debate. 101 In our view, it is simply preposterous to believe that the drafters of the Fifth Amendment shared anything resembling the modern progressive notions of “liberty” and “due process.”

What is more, Madison, in proposing the Bill of Rights, uses a “there is something to gain, nothing to lose” line of argument.

In this connection, we should remark, Madison is generally credited with simultaneously removing the issue of a bill of rights from the political arena, while, at the same time, fending off the Antifederalist proposals that would have considerably weakened the national government.

Finally, none of the renowned commentators on the Constitution between the time of founding and the Civil War ascribed to “due process” or “liberty” a meaning different from the one that they had in the common law tradition. Justice Joseph Story in his Commentaries sees fit to treat of the Fifth Amendment in book III in his chapter on the “Judiciary—Organization and Powers,” rather than in a later chapter on “Amendments to the Constitution,” a fact that tends to affirm that the “due process” clause imposed an obligation or requirement primarily on the judiciary. In any event, he devotes only one paragraph to the “due process” clause:

To be sure, in this account, he does not take up certain of the questions raised by Crosskey such as the range of Congressional discretion in prescribing procedures that are “ unforbidden” by the Constitution. Nevertheless, it is unmistakable that Story did not see any great shift in the meaning of “due process” or “liberty” from that traditionally attached to them in the common law.

William Rawle’s views on the “due process” clause are interesting because they tend to confirm Crosskey’s interpretation. According to Rawle, provisions of the Fifth Amendment that precede the “due process” clause—e.g., indictment by grand jury, protection against double jeopardy—as well as provisions of the Sixth and Eighth Amendments, guarantee “that no one can be deprived of life, liberty, or property, without due process of law.” 104 As he sees it, the “due process” clause is redundant; it is repeated, he informs us, because “it exhibits the summary of the whole, and the anxiety that it should never be forgotten.” 105 But, again, Rawle interprets the clause in the context of its common law origins and operations; he attributes to it no meaning beyond that of providing for established common law guarantees, primarily in criminal proceedings.

Chancellor James Kent in his discussion of “personal security and personal liberty,” after a brief history of colonial and state provisions related thereto, observes: “It may be received as a self-evident proposition, universally understood and acknowledged throughout this country, that no person can be taken, or imprisoned, or disseised of his freehold, or liberties, or estate, or exiled, or condemned, or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers.” And like Story, he takes care to note that “ by law of the land, as used in magna carta, . . . are understood to mean due process of law, that is, by indictment or presentment of good and lawful men; and this, says Lord Coke, is the true sense and exposition of those words.” 106 What is more, in his discussion of “personal liberty” and “the privilege of habeas corpus,” Kent makes it abundantly clear that the “liberty” of the “due process” clause relates to “restraint” or “imprisonment” in keeping with Blackstone’s definition.107

In sum, the commentaries on the “due process” clause are not extensive—a good indication that the clause was not intended to allow the courts wide discretionary latitude over substantive legislation. Otherwise, it is safe to assume, they would have dwelt on the nature and scope of this new discretionary power so markedly alien to the republican spirit of the times. Equally compelling evidence that the “due process” clause was not intended to bestow new and unparalleled powers on the courts is the fact that all the commentators deal with “due process” and “liberty” in the context of the common law heritage that we have surveyed in this chapter. That this understanding was shared by a majority of the Supreme Court in the two cases to come before it involving the “due process” clause prior to the Civil War hardly comes as a surprise.108 We can say that, with deviations here and there at the state level regarding property “rights,” the prevailing view of “due process” and “liberty” was firmly anchored in the common law tradition. As Charles Warren wrote, “The term ‘liberty’ in the Due Process Clause was constructed by the State Courts in very few cases. Practically in only one case prior to the Fourteenth Amendment is there any trace of a decision that ‘liberty’ meant anything more than freedom from physical restraint.” 109 Put otherwise, up to and beyond the Civil War, Hamilton’s view of the character and scope of “due process” held sway. In speaking before the New York Assembly in 1787, he noted that “ due process ” are words with “precise technical import” that apply “only . . . to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.” 110

The overwhelming evidence to this effect only serves to highlight questions of the first order that we have barely touched upon in our survey. What can account for the enormous sea-change that has occurred over the meaning and scope of “liberty” and “due process”? To trace this transformation at the theoretical level is possible and we have already indicated the directions any such inquiry might take; how the “law of the land” provision could be read to embrace “fundamental” laws or precepts that serve to restrain the scope of legislative authority and, then, how this could be subsequently read back into “due process” on the basis of Coke’s authority. But any such theoretical analysis cannot answer the more significant and intriguing questions. Why, for instance, the eventual acceptance of such tenuous foundations for the exertion of judicial powers well beyond bounds ever anticipated by the Framers? Could it be that, in keeping with Publius’s observations about the “encroaching spirit of power,” (48:308) “liberty” and “due process” merely provided the most plausible avenues through which the courts could expand their powers? Or could it be that the courts were only responding to underlying, but significant, ideological changes that call for more expansive interpretations? But, if so, why in many instances has it fallen to the courts, not the legislature, to give effect to the new ideological ends?

Quite aside from the much debated questions whether the courts should be responsive to such ideological changes or whether, instead, they have an obligation to “stick” as closely as possible to the letter of the Constitution, the fact that the courts have been responsive to new and expanded conceptions of “liberty” and “due process” does raise a concern about the general health of the political system bequeathed to us by the Founders. Can it be that our distinctly political branches, principally the Congress, are not responsive to the underlying ideological changes? Can it be that the courts are simply responding to the “political failures” of the elected branches? But this leads to the further question, not easily answered—how are we to determine what constitutes a “political failure”?111 And if we conclude that the courts have only compensated for the political failures of the elected branches, then might not constitutional changes be in order to eliminate the source or sources of these political failures?

These and like questions, we submit, are those that must eventually emerge from any analysis of the original meaning of “liberty” and “due process.” And, in turn, they should lead us to an inquiry, not unlike that undertaken by our Founding Fathers, into the relationship between constitutionalism and republicanism.

[1 ]The standard primary works of this era—the deliberations at the Constitutional Convention, The Federalist, the ratification debates, Antifederalist writings, among others—are only the tip of a huge body of relevant literature. For a more complete picture see “Suggestions for Further Reading” later in this book, particularly the edited works of Charles S. Hyneman and Donald S. Lutz, Bernard Bailyn, Oscar and Mary Handlin, Herbert Storing, Philip B. Kurland and Ralph Lerner, and Bernard Schwartz.

There are a number of secondary works, based upon primary materials, that endeavor to convey the prevailing political thoughts of the period in a systematic fashion. Among these are: Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967); Clinton Rossiter, Seedtime of the Republic (New York: Harcourt, Brace, and Company, 1953); Gordon Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969); John Phillip Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988).

[2 ]That this created a different political landscape that created new problems for securing liberty—problems that the new constitution makers had not proven