« Ilan Wurman on Eric Segall on Originalism
Michael Ramsey
| Main | Jeffrey Bellin: Fourth Amendment Textualism
Michael Ramsey »


The Relevance of Edward Coke’s Original Meaning: A Reply to Evan Bernick
Andrew Hyman

My thanks to Evan Bernick for responding to my earlier post about what Edward Coke originally meant by the term "due process of law."  Bernick is “primarily concerned” with how Coke was understood by the generations of Americans who authored the U.S. Constitution, rather than with Coke’s original meaning.  I entirely agree with Bernick on this point, but also believe that Coke’s original meaning is among the best evidence of how Coke was later understood by Americans.

Absent clear evidence from each of the original thirteen states about what Coke’s definition of due process of law meant to them, I think it makes good sense to assume that the people in those states understood Coke correctly rather then incorrectly.  On the other hand, if evidence from some of the original thirteen states indicates a clear misunderstanding of Coke on this point, then we would probably have to inquire whether people in those states were more apt to stick with their own spin on Coke, notwithstanding further evidence about what Coke actually meant.  And then we would have to balance the evidence from all of those thirteen states. 

In short, Coke’s original meaning seems very pertinent to interpreting the U.S. Constitution, whereas Bernick finds it “irrelevant to the arguments we make concerning original meaning.”  Of course, there is plenty of evidence unconnected to Lord Coke that can help us understand the original constitutional meaning of “due process of law,” but Coke’s original meaning justly carries a great deal of weight too.  I object to the notion that one can properly understand how people in 1789 understood Coke without considering what Coke himself originally meant.  Because Coke’s original meaning was the focus of my post, and because Bernick finds it “irrelevant,” I suppose we will have to agree to disagree about its relevance.

Despite Bernick’s belief that Coke’s original meaning is irrelevant, he quotes Coke quite a lot, including Coke’s statement that due process of law is “declaratory of the old law.”  But Bernick does not quote or comment upon the passage that I pointed to where Coke explains exactly what he meant by that phrase “declaratory of the old [law].”   And readers of Coke in 1789 would have seen that that passage was merely referring to any statutory provision that does not change the law but rather repeats already-existing law; the Edwardian due process statute did just that, i.e. it merely repeated what was already the law according to Magna Carta’s Law of the Land Clause. 

I do not understand where in Coke's writings a reader in 1789 would have gotten the idea that the criteria for legality went beyond the criterion of enactment or acceptance by the supreme legislative power.  Bernick quotes Coke on monopolies, but leaves off the last seven words; Coke wrote that monopolies are “against this great Charter, because they are against the liberty and freedom of the Subject, and against the Law of the Land.”  Ryan Williams has correctly observed:

English courts had long held monopolies granted by the Crown without Parliament's approval to be prohibited by the common law, and such grants were formally prohibited by the Statute of Monopolies enacted by Parliament in 1624 four years before the first volume of Coke's Institutes appeared.  Coke's characterization of monopolies as contrary to the law of the land may thus have signified nothing more than that monopolies granted as a matter of royal prerogative were contrary to then-existing English common law and statute law….

It therefore seems pretty clear that Coke meant monopolies could be made legal by parliament, but were not legal as of the date of his treatise. 

I do not mean to suggest that construing Fifth Amendment "due process of law" in line with Coke would leave Congress totally unlimited by this clause.  Congress would not only be prohibited from contradicting or repealing this clause, but also would be forbidden (e.g.) from enacting weaker remedies than “liberty” when the criminal procedures listed in the rest of the Bill of Rights are violated.  I note that Richard Re has proposed a similar interpretation of “due process of law” to justify the Exclusionary Rule, although I would limit that interpretation to violations that occur during rather than before an “action,” in keeping with the definition of the word “process” that was prevalent in 1789.