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A Response to Andrew Hyman on Coke and Due Process
Evan Bernick

[Editor's note:  Evan Bernick is a visiting lecturer at Georgetown University Law Center and a resident fellow of Georgetown's Center for the Constitution.]

In a pair of posts on this site, Andrew Hyman has criticized Randy Barnett and my Article, “No Arbitrary Power: An Originalist Theory of the Due Process of Law,” which is forthcoming in the William & Mary Law Review. Specifically, he has claimed that we—together with Justice Neil Gorsuch—have been confused by the “crabbed, thorny prose” of Lord Edward Coke’s commentary on Magna Carta in his Institutes of the Laws of England into misattributing to the great jurist a “substantive” understanding of “due process of law.” Hyman implies that this misattribution undermines the credibility of our claims about the original meaning of “due process of law” as it appears in the Constitution.

 We think that Hyman greatly overestimated the importance of Coke’s commentary to our core claims. Even if Hyman’s claims about Coke’s intended meaning are correct—and we doubt that they are—that intended meaning is at best marginally relevant to our thesis, and we could concede the accuracy of Hyman’s interpretation of Coke without altering anything of substance in our Article. We hope to clear up the confusion below.

Hyman understands us to agree with Justice Gorsuch’s statement (in his concurrence in Sessions v. Dimaya) that due process of law guarantees that “the people’s rights are never any less secure against governmental invasion than they were at common  law.” In support of this statement, Gorsuch drew upon Coke’s commentary on Chapter 29 of Magna Carta (Chapter 39 in the original)—the famous “law of the land” clause—although Gorsuch also cited Justices Story and Scalia as authorities. Hyman concedes that “[i]f 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.” But, argues Hyman, Coke did not so interpret it, and so we are wrong—although we have the consolation of being in “distinguished company.”

Here is the key passage from Coke’s Institutes in which Coke discusses Chapter 29:

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. 

As Hyman observes, Coke in the same volume wrote that Magna Carta provided that  “no man be taken or imprisoned, but per legem terrae, that is, by the Common Law, Statute Law, or Custome of England.” If we understand Coke to be saying that “by the law of the land” meant “consistently with the Common Law, Statute Law or Custome of England”, it would seem to follow that Coke understood Chapter 29 to impose limitations on the content or substance of official actions against individuals, not merely the procedures through which those actions could be taken. Any substantive limitations would be imposed by existing “Common law, Statute Law or Custome.”

Hyman, however, argues that in citing the (wrong) Edwardian statute for “the true sense and exposition of these words [in Chapter 29]” and then stating that “this chapter is but declaratory of the old law of England,” Coke meant only “that the statute was not saying something new but rather was reiterating what had already been said in Magna Carta.” Coke was thus not asserting that Chapter 29 was “violated whenever the legislature offers less protection”—whether “procedural or substantive”—than did “ancient English law.”

We make a point of emphasizing in our Article that we do not believe that Coke understood Chapter 29 to impose any judicially enforceable constraints on Parliament. We concur with the scholarship of Philip Hamburger, which maintains that Parliament’s status as the highest court in the realm created insuperable institutional obstacles to the judicial invalidation of Parliamentary enactments. We also concur with Hamburger that Coke’s report of Dr. Bonhams Case, although interpreted by some as a declaration that judges may hold acts of Parliament to be legally void, most likely was an example of equitable interpretation. We’re not sure whether Hyman understands us to be arguing otherwise, but, to the extent that he does, he’s mistaken.

To the extent that Hyman is claiming that Chapter 29 placed no limits on the substance or content of royal actions against individuals—that it only guaranteed personnel and process—we respectfully disagree, and we find ourselves in distinguished, if surprising, company in doing so. No less an opponent of substantive due process than Raoul Berger recognized that “[a] judicial judgment posits some antecedent law that governed, the violation of which gave rise to the proceeding” and that Chapter 29 required that people be “charged with violation of some existing custom or law, without which a trial would be a farce.” Although Berger found “no dissent” concerning the proposition that Chapter 29 did not bind the legislature, he expressed agreement with historian Charles McIlwain that Chapter 29’s reference to the judgment of one’s peers “prescribe[d] the manner of application [of the law],” its reference to the law of the land, the law to be applied.”

That Lord Coke recognized—indeed, insisted upon—a distinction between the law of the land and the will of the King, and that he understood Chapter 29 to require royal actions be consistent with the former appears obvious from his commentary on the Chapter in the Institutes. Consider his statement that monopolies were “against this great charter, because they are against the liberty and freedome of the subject” and so could not be unilaterally granted by the King.  Or his affirmation that “[b]y the law of the land no man can be exiled, or banished out of his native country, but either by authority of Parliament, or, in case of abjuration by felony by the common law.” Examples could be multiplied, but the distinction between the law of the land and arbitrary royal will—by which is meant royal will that is unsupported by legitimate authority—can be easily perceived by prudent readers, despite its “crabbed, thorny prose.” It is also easy to perceive that Coke believed there to be more to Chapter 29 than access to the process and personnel of the courts. There was also law that judges were required to use to evaluate whether the actions of the King or his delegatees were in grounded in legitimate authority. Else, as Berger put it, any trial “would be a farce.”

But even if we were convinced that Hyman were correct about Coke—and, to be clear, we’re not—nothing of importance to our thesis turns upon this debate. It is with how Coke was understood by the American public that ratified the Fifth and Fourteenth Amendments with which we are primarily concerned in our Article. We aren’t interested in exploring Coke’s original intentions—we are focused on ascertaining the original meaning that those members of the American public who ratified the Fifth and Fourteenth Amendments most likely attached to the phrase “due process of law.”

For Hyman to undermine our claims about original meaning, he would have to parse the evidence we adduce in support of our argument that the phrases “law of the land” and “due process of law” were understood during the founding era to bind legislatures, even if Coke did not so understand either phrase; that both phrases were understood to guarantee both common-law procedural rights and the application of law, the content of which satisfied certain independent criteria for legality; and that these guarantees were originally designed to thwart governmental deprivations of life, liberty, or property that rested upon mere will rather than constitutionally proper reasons. He would have to explain why we’ve either drawn the wrong inferences from this evidence or adduce contrary evidence concerning original meaning. He would then have to do the same with our evidence that that due process of law became understood during the antebellum period to limit the ends in pursuance of which state legislatures could act when depriving people or life, liberty, or property. Whether Coke accurately understood Chapter 29 or the ratifiers of the Fifth or Fourteenth Amendments accurately understood Coke is irrelevant to the arguments that we make concerning original meaning.

Hyman acknowledges “there is some truth to the humorously cynical view that Coke’s mistakes were the common law.” Public meaning originalism requires that we take seriously the possibility that mistakes about what Coke wrote could have become part of the original communicative content of the Fifth and Fourteenth Amendments. We do not believe that we have misunderstood Coke, but Hyman quite possibly has misunderstood our discussion of his contribution to the due process of law.