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Barnett, Bernick, and Gorsuch on Coke
Andrew Hyman

Back in March of this year, Mike Ramsey mentioned a new article by Randy Barnett and Evan Bernick titled "No Arbitrary Power: An Originalist Theory of Due Process of Law.”  I don’t aim to critique that whole article here, but would like to respectfully disagree here with their treatment of Lord Edward Coke.  Justice Gorsuch said something similar about Coke in the recent 5-4 decision in Sessions v. Dimaya (striking down a statute as being too vague).  I’ll try not to get too deep into the weeds here, but some weediness is unavoidable.

Coke, the great jurist of the Elizabethan and Jacobean eras in England, was highly revered during the founding era of the United States, much as William Blackstone was.  But it’s easy to misunderstand Coke, and I think that’s what Barnett and Bernick (as well as Gorsuch) have inadvertently done here.

The constitutional historian Richard B. Bernstein has accurately observed that Coke “wrote in the crabbed, thorny prose of the seventeenth century,” and Coke did so to such a degree that Thomas Jefferson once complained: “I do wish the Devil had old Coke, for I am sure I never was so tired of an old dull scoundrel in my life.” Bernstein says that Jefferson’s view of Coke was “shared with nearly every law student of his time.”  That’s not to say that they did not admire Coke greatly, but rather that they found studying Coke very difficult.  We are now much farther removed from Coke than Jefferson was, which should give us great pause when making pronouncements about what Coke wrote.  That is why I will maintain an open mind about this matter, even as I present some evidence that seems compelling.

Here’s the passage of Coke in question, commenting on Chapter 29 of Magna Carta:

Nisi per Legem terrae.  But by the Law of the Land.  For the true sense and exposition of these words, see the Statute of 37 E. 3. cap. 8. where the words, by the law of the land, are rendred, without due process of law, for there it is said, though it be contained in the great Charter [Magna Carta], that no man be taken, imprisoned, or put out of his free-hold without proces 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 original of the Common Law.  Without being brought in to answere but by due Proces of the Common   law.   No man be put to answer without presentment before Justices, or thing of record, or by due proces, or by writ originall, according to the old law of the land.  Wherein it is to be observed, that this chapter is but declaratory of the old law of England. 

Keep in mind that, in the same volume, Coke explained the term per legem terrae as “by the Common Law, Statute Law, or Custome of England” (Coke elsewhere wrote that "the law of England is divided into three parts, common law, statute law, and custom; but the King's proclamation is none of them").  According to Barnett and Bernick (emphasis as in original):

By identifying due process of law with the law of the land, Coke incorporated into the former phrase the totality of England’s constitution, consisting  in Common Law,” “Statute Law,” and “Custome.” Due process meant both procedures and personnel associated with the common-law courts and the application of valid law—an enactment with content that was inconsistent with the “old law of the land” could not be applied to an individual.

In the recent 5-4 decision in Sessions v. Dimaya, Justice Gorsuch wrote something similar (citations omitted):

[I]n my view the weight of the historical evidence shows that the [Due Process] clauses ought to ensure that the people’s rights are never any less secure against governmental invasion than they were at  common  law.    Lord Coke took this view of the English due process guarantee…. And many more students of the Constitution besides -- from Justice Story to Justice Scalia -- have agreed that this view best represents the original understanding of our own Due Process Clause.

If Coke did indeed interpret the Due Process Clause as being violated whenever the legislature offers less protection than did English law that is now hundreds of years old, then such an interpretation by Coke ought to be hugely influential today, and hugely supportive of what Barnett, Bernick, and Gorsuch wrote (blockquoted above).  And, such an interpretation by Coke ought to be hugely empowering for the American judiciary, because any difference between ancient English law and current procedural or substantive law would be subject to ongoing judicial approval or rejection, to assure that current law is just as good as old English law was.  Nevertheless, for better or for worse, what Barnett and Bernick have attributed to Coke is not what Coke actually meant.  At the outset of the same volume, Coke wrote the following:

[T]he prudent Reader may discerne what the Common Law was before the making of every of those Statutes, which we handle in this work, and thereby know whether the Statute be introductory of a new Law, or declaratory of the old, which will conduce much to the true understanding of the Text itselfe.

This clarifies, for a prudent reader seeking true understanding, that when Coke later referred to the Edwardian statute “37 E. 3. Cap. 8” (which Coke meant to cite as “37 E. 3. Cap. 18”), and when Coke said that this Edwardian statute is “declaratory of the old law of England,” he meant that the statute was not saying something new but rather was reiterating what had already been said in Magna Carta.  The phrase “declaratory of the old law” did not mean “incorporating all pre-existing law,” as Barnett and Bernick would have it, although admittedly they have some very distinguished company in this misunderstanding of Coke.

It may well be that Coke made mistakes beyond misciting the Edwardian statute, but there is some truth to the humorously cynical view that Coke’s mistakes were the common law.  In any event, the mistakes of twenty-first century scholars (myself included) are surely not to be considered to be the ancient common law of England.