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05/24/2022

Crema and Solum Reply to Hyman
Max Crema and Lawrence Solum

We are grateful for Andrew Hyman’s engagement with our recent article on the original meaning of “Due Process of Law” in the Fifth Amendment.  The key question for originalists is the meaning of “due process of law” in 1791.  To answer that question, we trace the history of the phrase from the fourteenth century through to the founding-era.  We then investigate how “process,” “process of law,” and “due process of law” were used in founding-era documents, employing both traditional methods of historical research and methods associated with corpus linguistic analysis.  We conclude that the original meaning of the Fifth Amendment’s Due Process of Law Clause is much narrower than previously suspected, and only requires that the federal government secure the appropriate (or “due”) writ or precept before depriving an individual of life, liberty, or property.

Although Hyman briefly touches on our founding-era evidence (more on that later), he principally focuses on the meaning of “due process of law” in early English history.  Hyman suggests that “due process of law” was “essentially synonymous” with a much broader and more expansive term, “law of the land,” and therefore concludes our narrow definition of the phrase is mistaken.  We do not agree and offer this response.

As we set out at some length in our article, “law of the land” had a much broader meaning than “due process of law.”  According to Sir Edward Coke, “law of the land” meant the “legem angliae” (the law of England) and encompassed “the Common Law, Statute Law, or Custom of England.”  2 Edward Coke, The Institutes of the Laws of England 46, 51 [hereinafter Institutes].  Coke’s Institutes regularly uses “law of the land” to refer to England’s substantive laws, writing, for example, that a child born during the period of his parents’ engagement will be deemed mulier—born in wedlock—“by the law of holy church . . . albeit by the law of the land he is a bastard.”  1 Institutes 244 (emphasis added).  Coke’s writings are full of similar examples (many of which are documented in our article).  As Justice Powys’ opinion in Regina v. Paty explains: the meaning of “law of the land” is “not confined to the common law, but takes in all the other laws, which are in force in this realm.”

“Due process of law,” by contrast, was defined much more narrowly.  As the late-Justice Scalia once explained, the “historical evidence suggests that the word ‘process’ in [‘due process of law’] referred to specific writs employed in the English courts.”  Our article charts this evidence in detail.  For now, however, it is enough to point to Coke’s own understanding of “due process of law,” which he defined to mean “indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law.”  2 Institutes 50. 

Coke believed the “law of the land” meant the “the Common Law, Statute Law, or Custom of England” while “due process of law” meant writs, specifically “indictment or presentment [or] writ original of the Common Law.”  The concepts were related, but distinct.  Indeed, Coke is fairly clear that he understood these phrases to mean different things, explaining: “[N]o man can be taken, arrested, attached, or imprisoned but by due proces[s] of Law, and according to the Law of the Land.”  Id. at 52 (emphasis added); see also Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale L.J. 408, 429 n.82 (2010) (collecting similar statements by Coke that “seem to imply a distinction between the two concepts”).

Hyman’s post never grapples with this evidence of divergent meanings but instead points to a single passage from Coke that, he claims, “clearly” equates “law of the land” with “due process of law.”  Hyman is in good company; this passage has long been relied upon to equate the two terms.  In our article, however, we join the growing number of scholars to question this view and spend an entire section (which Hyman does not engage) explaining why it is mistaken.  We will not repeat our arguments here, except to note that the very passage Hyman relies on itself defines ‘by due process of law’ to mean: “by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by Writ original of the Common Law.”

Hyman claims that this sentence—which focuses on “indictment,” “presentment,” or “writ original” (all forms of process)––somehow has little to do with writs and is all about courtroom procedure.  According to Hyman, the words “in due manner” indicate that Coke intended to gesture towards something suspiciously like modern procedural due process doctrine.  But that reading is implausible: grammatically the “due manner” clause modifies the preceding “indictment or presentment” clause and not the sentence as a whole.  That makes sense—indictments and presentments were historically the province of grand juries.  At most, Coke is stating that the proper forms must be followed in securing the “due process” issued by the grand jury.  Hyman is correct that Coke is paraphrasing a statute from 1351 (not 1352), but that statute hurts, rather than helps, Hyman’s reading of Coke because the statute is even more clear that the “due manner” language refers to grand jury proceedings (or their equivalent), reading:

[N]one shall be taken by petition or suggestion made to our lord the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law . . . .”

1351, 25 Edw. 3 c. 4.

Hyman’s reading of this single passage from Coke is plausible if the passage is considered in isolation, but it is not the best reading.  And Hyman’s reading rapidly becomes untenable in view of the considerable evidence that Coke understood “due process of law” and “law of the land” to mean different things.  Moreover, Coke’s views—while important—are not dispositive of the ordinary meaning of the Fifth Amendment’s Due Process of Law Clause.  Our article discusses Coke at length because he is the traditional go-to for those who would define “due process of law” expansively, but the real question is how the phrase “due process of law” was understood in 1791. 

To answer that question, we analyzed more than 600 different founding-era sources.  First we used methods associated with corpus linguistic analysis to understand how founding-era Americans used the terms “process” and “process of law.”  Our results were surprising.  We found that “process” was used narrowly to mean writs (rather than more broadly to mean legal procedure) in 84% of sources.  The same was true for “process of law” in 74% of sources.  To put it plainly: when the Founding generation spoke of “process,” they meant writs.

We then examined a wide collection of colonial American documents that use the phrase “due process of law,” including colonial declarations of rights, early statutes, case reports, and legal treatises.  We once again found that most of these documents used “due process of law” to mean writs, rather than procedure.  As one popular Founding-era legal handbook (co-published by Benjamin Franklin) explained: “due process of law” meant “Indictment, or Presentment of good and lawful Men of the Place, in due Manner, or by Writ original of Common-Law,” and required that all seizures and commitments be made only upon “lawful authority” as conferred by a “Warrant or Mittimus.”

Hyman’s post discusses only two of our 600+ founding-era sources.  Hyman explains, without elaboration, that he has disregarded the bulk of the historical record because he is only “interested in how the term ‘due process of law’ was used in a context similar to the Due Process Clause.”  But the sources Hyman chooses to discuss—the above quoted legal handbook and a newspaper report of a speech by Alexander Hamilton—almost seem picked at random.  Although we do discuss these sources in our article, more obvious analogues to the Bill of Rights abound.  For example, Hyman might have considered our discussion of early colonial declarations of rights that use the “due process” language (pp. 492–95), the New York Rights Act of 1787 (pp. 497–99, 520–21), or New York’s Ratification Letter, which likely served as the inspiration for the Fifth Amendment’s Due Process of Law Clause (pp. 507–508).  We discuss these sources (and many more) in our article and urge interested readers to download a copy.

Turning to Hyman’s chosen terrain, we do not agree that the Conductor Generalis has little to add.  It was likely the most popular legal hornbook of the founding-era, widely used by both lay people and educated lawyers.  See John A. Conley, Doing It by the Book: Justice of the Peace Manuals and English Law in Eighteenth Century America, 6 J. Legal Hist. 257, 283 (1985).  The hornbook defines “due process” to mean “indictment,” “presentment,” or “writ original.”  It then goes on to explain:

[S]eeing that no man can be taken, arrested, attached, or imprisoned, but by due process of law, and according to the law of the land, these conclusions hereupon do follow:

1. That the person or persons which commit any have lawful authority.

2. It is necessary that the warrant, or mittimus, be lawful, and that [it] must be in writing under his hand and seal.

The hornbook’s list goes on, but you get the idea.  The right to “due process” meant the right to not be “taken, arrested, attached” etc. without a lawful warrant.

Finally, we come to Hamilton’s much debated comments on “due process” and “law of the land.”  The sole surviving report of Hamilton’s speech is vague, and its internal inconsistencies mean that there is something for everyone.  Compare Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process, 58 Emory L.J. 585, 630–32 (2009) (concluding Hamilton supported substantive due process) with Frank H. Easterbrook, Substance and Due Process, 1982 Sup. Ct. Rev. 85 (1982) (concluding Hamilton supported a weak procedural due process).  For example, Hyman elides that Hamilton discusses “law of the land” and “due process of law” separately and offers different definitions for each, undermining Hyman’s overarching argument.  Like much of the literature, we do not attach significant weight to these comments.

Our article advances a new understanding of the Fifth Amendment’s Due Process Clause, built on an exhaustive review of the available record.  We urge those who doubt our conclusions to read the article and consult the primary sources.