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Crema and Solum on Due Process
Andrew Hyman

As Michael Ramsey recently described on this blog, Max Crema and Lawrence Solum have authored a new article arguing that the words “due process of law” in the Fifth Amendment of the U.S. Constitution originally had a much narrower meaning than the words “law of the land” in the Magna Carta. This is an instance where our current laws use ancient phrases, so studying some ancient history is necessary (SNL notwithstanding).

It's important to keep in mind that the word “process” had more than one meaning.  According to the leading law dictionary of the eighteenth century, “First, it is largely taken for all the proceedings in any action, real or personal, civil or criminal, from the beginning to the end; secondly, we call that the process by which a man is called into any temporal court….”  If the broader meaning is used, then the phrase in the Fifth Amendment matches up better with Magna Carta, whereas Crema and Solum support a narrower meaning.

As best I can tell, the framers of the Fifth Amendment would have understood the phrase “due process of law” in accord with binding judicial precedent.  The Queen’s Bench in 1704 had decided the case of Regina v. Paty (92 Eng. Rep. 232, 234), in which Justice Littleton Powys wrote:

By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority. And the law of Parliament is as much a law as any, nay, if there be any superiority this is a superior law.

As far as I know, this opinion by Justice Powys became a binding judicial precedent, and was part of American law after 1776 by virtue of the reception statutes enacted by the former colonies; I am not aware that Crema and Solum disagree on this point.  Moreover, this opinion by Justice Powys seems easily reconcilable with what Edward Coke had written early in the previous century:

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.

Coke says here that “the words, by the law of the land, are rendred, without due process of law.” He also says here that “due process of law” is the “sense and exposition” of the term “law of the land.” That is why these two concepts have so often been understood as essentially synonymous by the great majority of judges and scholars who have addressed the matter.  As Justice Scalia correctly wrote in a 1991 concurrence: “Coke equated the phrase ‘due process of the law’ in the 1354 statute with the phrase ‘Law of the Land’ in Chapter 29 of Magna Charta….”

In contrast, Crema and Solum point to Coke’s phrase (in the block quote above) “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.”   We should interpret that phrase, if possible, consistently with what Coke already wrote in the same sentence, so that the words “in due manner” mean that the whole proceeding against a defendant must be done in a manner that is due according to law.  Certainly, it would not be proper to interpret that phrase to mean “by indictment or presentment of good and lawfull men … or by writ original of the Common Law,” without proving that the material hidden by the ellipsis added nothing meaningful, especially since the “due manner” language was explicitly included in a 1352 statute. In my opinion, Coke was clearly equating “law of the land” with “due process of law,” and thereby affirming that the 1354 explanation of Magna Carta was just as protective as was the original Magna Carta in 1215.  

Although Crema and Solum focus on how “process,” “process of law,” and “due process of law” were used in founding-era documents, I am more specifically interested in how the term “due process of law” was used in a context similar to the Due Process Clause in the decades leading up to 1791 (the year before the Bill of Rights was ratified).  This narrow focus is justified because a word having more than one meaning is sometimes used in a sense that is less common, for example in this sentence: "I am not sensible of having done anything wrong.”  That is not an admission of being unwise or imprudent, but merely a statement that a person does not perceive having done anything wrong.  I have carefully looked at the interesting historical evidence presented by Crema and Solum that satisfy the narrow search criteria that I have described, but they do not change my mind.  For example, they quote a manual titled Conductor Generalis published in New York in 1764 which says this:

Or by the law of the land: That is, by due process of law, for so the words are expresly expounded by the statute of 37 E. 3. chap. 8. And these words are specially to be referred to those foregoing, to whom they relate. As none shall be condemned without a lawful trial by his peers, so none shall be taken, imprisoned, or put out of his freehold, without due process of law, that is, by the indictment or presentment of good and lawful men of the place, in due manner, or by writ original of common law.

I do not see that this Conductor Generalis significantly modifies what Lord Coke had said.  

Another major source that Crema and Solum cite is Alexander Hamilton's discussion in the New York legislature about New York’s statutory Due Process Clause, although they acknowledge Hamilton was somewhat unclear.  Hamilton said:

[The state constitution says] no man shall be disfranchised or deprived of any right he enjoys under the constitution, but by the law of the land, or the judgment of his peers. Some gentlemen hold that the law of the land will include an act of the legislature. But Lord Coke, that great luminary of the law, in his comment upon a similar clause, in Magna Charta, interprets the law of the land to mean presentment and indictment, and process of outlawry, as contradistinguished from trial by jury. But if there were any doubt upon the [state] constitution, the [statutory] bill of rights enacted in this very session removes it. It is there declared that, no man shall be disfranchised or deprived of any right, but by due process of law, or the judgment of his peers. The words "due process" have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.

First, note that Hamilton deferred to Coke.  Second, he says that due process refers to “process and proceedings of the courts” which suggests he was using a broad rather than narrow meaning of “due process.”  Third, he says due process “can never be referred to an act of legislature” which (assuming he was correct) merely meant that the courts had to be involved in dispensing due process, not that the legislature had to be uninvolved.

“Due process of law” in the Fifth Amendment basically meant proceedings owed according to both procedural and substantive law, including writs established by law, as modified by later federal statute law and the U.S. Constitution.  If I am correct about that, then that clause in the Fifth Amendment is mainly a restriction on the executive and judicial branches.  However, that does not rule out some limitation upon Congress. For example, Congress obviously may not authorize the President to deprive people of liberty without due process of law (further examples are described at page 30 of this article of mine).