First, such a defense would provide a textual footing in the FifthAmendment for important substantive rights that bind the federal government 23 only through that Amendment's Due Process
MAGNA CARTA, SIR EDWARD COKE, AND SEVENTEENTH-
Due Process and Magna Carta
The concept of due process of law is rooted in Magna Carta, the Great Charter forced upon King John at Runnymede in 1215 Among its provisions, the most influential is the “law of the land” clause of Chapter 29, which established fundamental protections against arbitrary action This clause ensures that a free man shall not be deprived of his rights or punished except by the lawful judgment of his peers and the law of the land, thereby anchoring the rule of law in constitutional safeguards that would shape legal rights for centuries.
"No free man shall be arrested or imprisoned, or disseised or outlawed or
An originalist defense of substantive due process rests on a centuries‑old core idea: people should not be exiled or victimized, or attacked, except under the lawful judgment of their peers or by the law of the land Chapter 29 took shape in a way that would influence centuries of Anglo‑American jurisprudence, a trajectory reinforced by six reaffirmation statutes enacted during Edward III’s reign in the fourteenth century These reaffirmation statutes memorialized a crucial understanding of Chapter 29: the law of the land is the due process of law, the principle that protects individuals by ensuring that punishment and action follow lawful procedure rather than arbitrary force.
These verbal formulations underscored that due process encompasses both substantive protections and procedural safeguards, illustrating that 'procedure by original writ or by an indicting jury' was designed to ensure a fair hearing The reaffirmations clarified that the 'lawful judgment of his peers' means trial by jury, and that Chapter 29 protects 'all persons' of 'whatever estate or condition.' Taken together, these statements reaffirm the core constitutional guarantees of fair treatment and equal protection under the law, ensuring a jury trial for every individual regardless of status.
During the thirteenth and fourteenth centuries, the Charter and its reaffirmations coincided with the rise of English common law and the royal courts Because these courts had national jurisdiction, they displaced many local tribunals—manorial, shire, and others—and their decisions came to be known as the common law of England This shift laid the foundation for the classic definition of the common law of England.
"common law"-"the law and customs common to the whole kingdom of England, administered by a centralized court system with nationwide
49 Magna Carta (1215 & 1225), reprinted in RALPH V TURNER, MAGNA CARTA THROUGH THE AGES app at 226, 231 (2003) References to this clause here and elsewhere in this Article are to Chapter 29 of the
The 1225 version of the Charter, affirmed by Henry II, is preferred by historians over Chapter 39 of the 1215 version, which was subsequently repudiated by John See George Burton Adams, Constitutional History of England 138 (1934); Helen M Cam, Magna Carta—Event or Document? 3, 13 (1965); J C Holt, Magna Carta 393–94 (2d ed 1992) [hereinafter Holt, Magna Carta].
Whether a king’s agreement to the provisions of Magna Carta bound his successors was addressed through regular reaffirmation of Magna Carta, through coronation charters issued by the crown, and later by Parliament’s enacted statutes ADAMS, supra note 49, at 130–31.
51 HOLT, MAGNA CARTA, supra note 49, at 10; A.E DICK HOWARD, MAGNA CARTA 15 (rev ed 1998).
52 See, e.g., FRANK R STRONG, SUBSTANTIVE DUE PROCESS OF LAW: A DICHOTOMY OF SENSE AND
Scholars argue that Magna Carta’s remedies for dispossession of feudal estates would seem to affirm that Chapter 29 protected substantive property rights, not merely procedural protections Likewise, Riggs notes that recognizing substantive overtones in Edwardian statutes aligns with the view of McKechnie, Holdsworth, and Thompson that, in the fourteenth century, due process of law and the law of the land were essentially equivalent terms with both substantive and procedural content.
53 CAM, supra note 49, at 18-19; HOLT, MAGNA CARTA, supra note 49, at 10.
54 ADAMS, supra note 49, at 135-36; S.H BAILEY & M.J GUNN, SMITH AND BAILEY ON THE MODERN ENGLISH LEGAL SYSTEM 4 (3d ed 1996); C.H MCILWAIN, CONSTITUTIONALISM AND THE CHANGING WORLD
Scholarly work on the origins of the common law emphasizes the shift from baronial to royal jurisdiction, with the displacement of baronial courts by royal courts cited as a key development in early English law; this lineage is reflected in sources from 1939 (86, 88), Gary Slapper and David Kelly’s English Law (3rd ed., 2000), and David A Thomas’s analysis in Origins of the Common Law: Common Law Under the Early Normans (Part III) in the 1986 BYU Law Review (pp 109, 120–122).
Magna Carta and the common law came to be seen as remnants of a romanticized ancient Saxon legal tradition ruptured by the Norman invasion The convergence of belief in the Charter’s ancient rights and remedies with alleged discoveries by royal courts of an equally ancient common law linked Magna Carta and the common law in the English legal tradition This association was crucial because, in medieval and early modern England, the common law was regarded as the constitution of the kingdom By the end of the fourteenth century, the myth of Magna Carta was well entrenched in legal culture, with Magna Carta understood to declare fundamental English law—so that the rights and remedies it asserted against the king became part of the common law.
Coke and the Deployment of Due Process Against the Crown (and Parliam ent?)
Natural Law and Common Law
Coke’s invocation of “common right and reason” in Bonham’s Case reveals a natural-law resonance that seems less obvious today Although late medieval and early modern scholarship maintained that the common law reflected or incorporated natural-law principles, most common-law decisions did not make explicit natural-law arguments or cite natural law Nevertheless, natural law entered into judicial thinking and influenced the development of the common law, shaping legal outcomes even when not openly named in the opinions.
118 SECOND INSTITUTE ch 29, supra note 110, at 851.
119 EDWARD COKE, THE THIRD PART OF THE INSTITUTES OF THE LAWS OF ENGLAND: CONCERNING HIGH
TREASON, AND OTHER PLEAS OF THE CROWN AND CRIMINAL CAUSES 181 (Lawbook Exchange 2002) (1644).
120 SECOND INSTITUTE ch 29, supra note 110, at 852.
Coke condemned the practice by which kings, and occasionally Parliament, sought to sideline troublesome political opponents by appointing them to posts outside England; acceptance conveniently removed them from English politics, while refusal could trigger forfeiture of lands and privileges or even imprisonment He argued that this banishment or exile violated the plain language of Chapter 29 when imposed without a prior felony conviction Like monopolies, the core violation was not unfair process but the penalties themselves imposed upon rejection of the appointment, a view developed in Coke’s efforts in Parliament to protect subjects’ rights against imprisonment without cause (Id at 852-53; Bowen, supra note 76, at 482).
Late medieval English law integrated natural-law thinking and morality of divine origin into its reasoning, shaping the development of the common law and judicial decision‑making Norman Doe’s Fundamental Authority in Late Medieval English Law argues that morality of divine origin was embedded in English legal thinking, while Cromartie shows that decisions by the bench increasingly took natural law into account, and Richard O’Sullivan’s The Natural Law and Common Law analyzes how natural law related to and influenced the common law in early English jurisprudence.
122 DOE, supra note 121, at 176; Postema, Classical Common Law, supra note 55, at 177-78; Pound, supra note 27, at 228; Roscoe Pound, The Development of Constitutional Guarantees of Liberty (pt 2), 20NOTRE DAME LAW 347, 364 (1945).
2009] AN ORIGINALIST DEFENSE OF SUBSTANTIVE DUE PROCESS 609 the common law implicitly through the notion of resoun, an evocative Norman French cognate of "reason," which combined notions of "rightness" and
"Reasonableness" has been used by judges and lawyers to describe the essence of the common law Usually rendered as "reason" or "right reason," resoun conveys at once the notion of a living community and its sense of justice A decision that had "reason" or "right reason" was "fitting" in a dual sense: both consistent with customary precedent and expressive of a morally correct outcome Indeed, in the classical common law tradition, reason underpinned judicial thinking and the pursuit of just, well-founded outcomes.
Reason has sometimes been understood as the equivalent of justice, suggesting that evaluative judgment is central to the law As Professor Postema notes, in classical common law reason stood for the judge's situated, experience-informed judgment—one that uses all the resources of the vast body of law, thinks by analogy and extension from what is known, and aims to fashion a just and workable solution.
In the seventeenth century, it was widely assumed that there was a close relationship between the common law and natural law, yet the common lawyers offered no formal explanation They grounded the common law in both custom and natural law, using rhetoric that did not confront the improbability of deriving one system from the other As modern jurisprudence developed, this unresolved problem became increasingly acute.
123 H JEFFERSON POWELL, THE MORAL TRADITION OF AMERICAN CONSTITUTIONALISM 77 (1993); see
The classical common law maxim, "what is not reason is not law," frames legal authority as inseparable from reason (Stoner, Liberal Theory, supra note 70, at 173) In seventeenth-century jurisprudence, Gerald J Postema argues that the common law's "artificial reason" was seen largely as the most reliable procedure for approximating natural justice (Postema, Classical Common Law (pt 2), 3 OXFORD U COMMONWEALTH L.J 1, 21 (2003)) Christopher Saint German likewise contends that the first ground of the law of England is the law of reason (Saint German, St German's Doctor and Student 33-35 (T.F.T Plucknett & J.L Barton eds., Selden Society 1974) (1523)).
Powell notes (124 POWELL, supra note 123, at 78) and DOE (DOE, supra note 121, at 176) argue that an "idea[] of abstract right" is implied by the resemblance between the practitioners' reason, on which the common law was founded, and the theorists' justice, which requires that each be given his due; they further observe that although common lawyers rarely invoked natural law, they employed comparably moral ideas, appealing to notions of fairness and entitlement to due treatment.
"conscience and ideas of divine law"); GERALD J POSTEMA, BENTHAM AND THE COMMON LAW TRADITION 7
(1986) [hereinafter POSTEMA, COMMON LAW TRADITION] ("Common Law is seen to be the expression or manifestation of commonly shared values and conceptions of reasonableness and the common good.").
125 See POSTEMA, COMMON LAW TRADITION, supra note 124, at 7.
126 DOE, supra note 121, at 120; see also id at 115 (noting that "reason" was deployed at common law for substantially the same ends as equity was deployed in the chancery courts).
Scholars of classical common law argue that, for fifteenth- and sixteenth-century common lawyers, the authority of morality—manifested in natural law, divine law, justice, or conscience—and the exercise of good sense and proportionality—manifested in reason—were crucial to the existence and development of law This claim is supported by Postema's Classical Common Law and related discussions, underscoring that moral authority and rational judgment underpinned legal legitimacy and evolution more than formal rules alone.
128 James Q Whitman, Why Did the Revolutionary Lawyers Confuse Custom and Reason?, 58 U CHI L.
Historical scholarship, including REV 1321, 1352–61 (1991) and Postema’s discussion in The Common Law Tradition (supra note 124, at 35–36), suggests that the common law’s concept of reason was practical and historical, with natural law not external to the tradition but implicit within it—immanent, not socially transcendent As the era matured, natural law came to denote deductive reasoning rather than the earlier pragmatic understanding.
The question of whether "divine law" or "practical wisdom" grounds the customary common law right to a jury trial remains unresolved, and it is unclear how such a right could be derived from human existence in the state of nature or by any form of deductive reasoning.
Coke helped propagate the view that the common law embodies a natural-law core, with resoun guiding certain rights and principles as "higher law." Prohibitions del Roy and Bonham's Case rested on resoun, showing how legal reasoning in the common law could constrain prerogative power Yet Coke told James that "reason" in the common law is not the universal rationality of all humanity, but an "artificial" reason developed by long study and professional experience in the legal craft In Bonham's Case, he drew on the ubiquitous common-law tradition to articulate limits on royal authority and to anchor the legitimacy of judicial oversight.
Whitman argues that the casual mingling of common law and natural law reflects an evidentiary crisis of custom in the late medieval and early modern eras He asserts that local custom was the basic norm underlying both continental and English legal systems However, as centralized courts replaced local ones, judges no longer had access to local witnesses needed to prove the local customs that governed cases, thereby undermining the traditional evidentiary basis during the period spanning the 1330s to the 1350s.
Faced with a dearth of local witnesses, early modern lawyers sought another way to determine customary practice They fused customary law with natural law into a distinctive product they called the "common custom of the realm," embodied in treatises that could be consulted instead of local testimony This substitution merged tradition with theory, expanding the reach of what could count as law even when no local witnesses were available The consequence was a thorough confusion of custom and reason, as authoritative texts replaced place-specific knowledge and blurred regional variation in practice In short, blending customary and natural law into formal writings could shape legal outcomes by privileging the realm's common custom over local practice.
Under the early common law, once the customs that underpinned the system were deemed reasonable, their validity could be proven by reason rather than by testimony In practice, this meant that the common law rested on reasonable usage, recognized across the realm and approved time out of mind in the king’s courts of record with jurisdiction over the whole kingdom, deemed good and profitable for the commonwealth This view, attributed to Thomas Hedley in a 1610 speech and cited in J.G.A Pocock’s discussions of the Ancient Constitution and the Feudal Law, illustrates how legal legitimacy was tied to long-standing practice and rational justification rather than mere evidence of custom.
DUE PROCESS AND UNENUMERATED RIGHTS BEFORE THE FIFTH
Coke was not alone in shaping seventeenth-century higher-law constitutionalism; other eminent common lawyers, such as John Selden and Sir Matthew Hale, acknowledged the influence of natural law on the common law and argued that the judicial application of the law defined the limits of the royal prerogative Nevertheless, American colonists largely looked to Coke when formulating higher-law arguments against what they perceived as British oppression.
In the century after England's Glorious Revolution of 1688, parliamentary supremacy supplanted Sir Edward Coke's view that due process and higher-law principles safeguarded substantive liberties against royal and parliamentary encroachments Yet higher-law constitutionalism found a receptive home in the American colonies, where it shaped their revolutionary struggle with Britain As the eighteenth century progressed in Britain, parliamentary supremacy gradually displaced higher-law constitutionalism, a shift that did not take hold in America and helped frame the divergent constitutional trajectories across the Atlantic.
132 See Edward S Corwin, Natural Law and Constitutional Law, 3 U NOTRE DAME NAT L INST PROC.
45, 54 (1950) [hereinafter Corwin, Natural Law]; Pound, supra note 27, at 228.
Stoner argues that Coke uses reason as a guarantor of consistency across the law rather than as a first principle, thereby securing coherence in the entire legal system; this reading is discussed in Liberal Theory (supra note 70, at 25, 54) Postema, in Classical Common Law, notes that a custom, practice, rule, or judgment must align with reason, or else it is inconsistent with the law as a whole (supra note 55, at 178).
Corwin’s Natural Law framework, cited at page 79, and DOE’s analysis on page 176 argue that there is a resemblance between the practitioners’ reason—upon which the common law was founded—and the theorists’ concept of justice, while also warning that absurd results or arguments are against reason Similarly, Stoner’s Liberal Theory, discussed at pages 58 and 173, contends that violations of common right and reason yield absurd or unjust outcomes that do not bind the courts.
135 See Raffield, supra note 67, at 78.
136 See, e.g., Postema, Classical Common Law (pt 2), supra note 123, at 27.
Scholars argue that the constitutional conflict that led to the American Revolution and ultimately to the U.S Constitution and the Bill of Rights arose from a clash between competing theories of political authority: Stoner's Liberal Theory contrasts Hale's emphasis on common-law reason with Hobbes's idea of an absolute sovereign, a contrast Raffield also analyzes (Stoner, Liberal Theory, supra note 70, at 131-33; Raffield, supra note 67, at 78).
Although Magna Carta, due process, and common-law traditions offered important constraints, they failed to curb the absolutist ambitions of the Stuart kings The real counterweight proved to be Parliament, especially the House of Commons, which in the 1640s fought, deposed, and ultimately executed Charles I After a decade of Puritan rule under Oliver Cromwell and then his son Richard, Parliament restored the monarchy in 1660 with Charles II Yet several decades of conflict with James II, Charles II’s Catholic successor, culminated in the Glorious Revolution of 1688, when James II was deposed and his Protestant daughter Mary and her husband William of Orange were invited to take the throne.
In the span of less than half a century, then, Parliament had successively impeached, deposed, and executed one king, overthrown the Puritan dictatorship that followed, reconstituted the monarchy, driven yet another king into exile, and (finally) installed his successor 14 1 That it was necessary for Parliament to take these actions at all is perhaps the best evidence that higher- law constitutionalism was not up to the task of reining in abuses of prerogative by the Stuarts What eventually arose in place of higher-law constitutionalism was a different constitutional understanding, under which Parliament itself wielded absolute constitutional authority as the sovereign in the British constitutional system Having vanquished the royal foes of English liberty, Parliament formalized the protection of that liberty in itself 142 As Professor
139 Id at 334-38; 1 MELVIN I UROFSKY & PAUL FINKELMAN, A MARCH OF LIBERTY: A CONSTITUTIONAL HISTORY OF THE UNITED STATES 13 (2d ed 2002).
141 Edmund S Morgan, Constitutional History Before 1776, in AMERICAN CONSTITUTIONAL HISTORY 1, 7
(Leonard Levy et al eds., 1989).
142 See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 200 (enlarged ed.
Bailyn's Ideological Origins (1992) notes that Parliament's actions were partly driven by pressures from both Royalists and extreme libertarians, who promoted individual rights against all forms of government; Reid's Constitutional History of the American Revolution (1987) compares Parliament's exercise of authority to that of the deposed kings.
2009] AN ORIGINALIST DEFENSE OF SUBSTANTIVE DUE PROCESS 613
Reid notes that the Glorious Revolution was "the triumph of liberty, but of a liberty that had been institutionalized in Parliament's supremacy over the crown." This moment signaled a shift away from the older foundations—the supremacy of Magna Carta, due process, and the common law, in which Coke had placed such faith—toward a new constitutional order defined by Parliament's authority over the crown In this sense, the revolution replaced the traditional emphasis on established legal safeguards with parliamentary supremacy, redefining how liberty was secured in the changing balance of power.
As the British seventeenth century gave way to the eighteenth, the authority of Bonham's Case and the idea that common-law judges could challenge royal and parliamentary power in defense of individual liberty gradually receded By the mid-1700s, a competing understanding of the English constitution had taken its place alongside higher-law constitutionalism: the English constitution was what Parliament chose to enact or repeal as law, even when such actions violated natural or common law.
Before the nineteenth century, the notion of sovereign command did not clearly displace higher-law constitutionalism As early as 1765, Blackstone argued that there was no constitutional remedy when Parliament violated the fundamental common-law rights protected by the English constitution, underscoring that parliamentary sovereignty did not automatically override the protections of the higher-law framework.
According to Reid's Constitutional History (supra note 142, at 67), the constitutional framework places ultimate authority in Parliament, a view echoed by Goodhart in Law of the Land (1966, p 50), who states: "It was clear that there was no prerogative power vested in [the King] which was not subject to ultimate control by Parliament." Morgan (supra note 141, at 8) likewise confirms this principle of parliamentary supremacy.
144 See ORTH, supra note 72, at 25 ("The only institution that was a match for the Crown was Parliament, as demonstrated in the Glorious Revolution of 1688.").
146 See 1 REID, CONSTITUTIONAL HISTORY, supra note 142, at 76 ("The meaning of constitutionality was drastically transformed."); 3 id at 63-70; 4 id at 55.
Blackstone and his English-law contemporaries rejected any claim that judges could enforce a law of nature or reason in defiance of positive law, underscoring that statute and positive law govern legal obligation As Gordon S Wood explains, the eighteenth century saw the Commons evolve into an independent body distinct from the people, yielding a doctrine of parliamentary sovereignty in which Parliament was the final and supreme authority for all law—even against the wishes of the people it ostensibly represented, a dynamic that helped shape the later development of the American Republic.
148 See Wayne McCormack, Lochner, Liberty, Property, and Human Rights, 1 N.Y.U J.L & LIBERTY
Although British courts would eventually embrace the doctrine of Parliamentary Supremacy, the views of early jurists like Lords Coke and Holt suggested that Acts of Parliament were still bound by the established rights of Englishmen Their stance highlights the historical tension within English constitutional law between parliamentary sovereignty and the protection of fundamental rights.
In his Commentaries on the Laws of England, William Blackstone argued that while Parliament’s enactments that produce absurd results ought to be void in principle, the courts have no authority to enforce that limitation against Parliament, even when Parliament violates fundamental English rights He famously maintained that what Parliament does cannot be undone by any earthly power, and, as long as the English constitution lasts, parliamentary sovereignty remains absolute and without check.
Constitutional Ambiguity in the American Revolution
Because most American colonies were chartered and settled in the early seventeenth century, Coke’s career as a judge and member of Parliament was at its height, and he exerted a strong influence on colonial law A large number of seventeenth-century American lawyers studied law in England, where Coke’s Reports and Institutes were staples of legal education, just as they remained in the American colonies until the publication of Blackstone’s Commentaries in 1765 Even after Blackstone, Coke’s higher-law constitutionalism continued to be the more influential school of thought before and during the American Revolution, when the arguments of Locke and the Whigs of the Glorious Revolution dominated legal and political thought in the colonies.
American lawyers were well-versed in English constitutional principles, including Chapter 29, the "myth of Magna Carta," Bonham's Case, and the broader resources of higher-law constitutionalism The influence of higher-law constitutionalism already appeared in the colonies by the mid-1650s, shaping colonial legal thought and institutions as the groundwork for later resistance when the revolutionary conflict arose in the colonies.
Scholars across constitutional theory have long debated the idea of a higher law that constrains government power and underpins the legitimacy of the legal order This theme is traced in Barnes (150 Barnes, supra note 71, at 24) and in Corwin’s “Higher Law” Background (pt 2) (supra note 70) at 394, where the notion is developed as a constitutional limit beyond ordinary statute Further elaboration appears in Grey’s Fundamental Law (supra note 29) at 850, as well as Pound’s analyses at 229 and 349, and Riggs’s discussion at 945 and 958-59, collectively illustrating the persistent relevance of fundamental law to legal philosophy and constitutional practice.
Sir Edward Coke’s writings were ubiquitous in English legal education, shaping generations of lawyers, judges, and scholars Americans who studied in London returned home with a pronounced appreciation for Coke’s influence, especially in the doctrine of due process of law Together, these observations show how Coke’s jurisprudence saturated transatlantic legal training and left a lasting imprint on both English and American understandings of due process.
During the later years of the Revolutionary period, Blackstone's Commentaries and the opinions of Chief Justice Camden became standard authorities Coke's Reports, by contrast, went through numerous printings, abridgments, and translations, reflecting their broad circulation Blackstone's publishing success was remarkable, aiding the dissemination of his legal thought Together with Blackstone, Locke, and Montesquieu, Coke was increasingly displaced as the authority on the common law Coke also influenced several of the Founding Fathers in meaningful ways Meyler's analysis compares Coke, Hale, and Blackstone to illuminate the underlying constitutional theories that shaped their respective frameworks.
Scholars have noted that in colonial America, citations to Coke were almost as frequent as those to Locke, Montesquieu, and Voltaire, signaling Coke’s central role in early American thought (Bailyn, Ideological Origins, supra note 142, at 30) Corwin observes that Coke’s theories continued to influence America long after the founding era, shaping constitutional and legal discourse (Corwin, "Higher Law" Background (pt 2), supra note 70, at 376) Pound adds that, just as medieval cases and tradition were to Coke, Coke’s Second Institute and the decisions of the common-law courts he discussed—or that followed him—were to American lawyers before the Revolution (Pound, supra note 122, at 349).
154 See ADAMS, supra note 49, at 333, 360-61; BAILYN, IDEOLOGICAL ORIGINS, supra note 142, at 45;
STRONG, supra note 52, at 14; WOOD, supra note 147, at 297.
Giddings v Browne (Salem, Mass County Court, June 22 and August 20, 1657) is a landmark example of colonial constitutionalism, voiding a majority-voted Ipswich tax intended to fund a house for the town pastor on the grounds that positive laws lose their force when they conflict with native or fundamental law The ruling emphasizes that laws enacted by authorities cannot stand if they directly oppose the community’s fundamental legal principles, signaling that fundamental law can override majority action By asserting that no king or parliament can justly enact a statute contrary to fundamental law, the decision articulates early limits on legislative power and the protection of essential rights in Massachusetts legal history.
An originalist defense of substantive due process notes that, in the mid-eighteenth century, the colonists strengthened their case against Britain by appealing to the higher-law constitutionalism of the seventeenth century—not to the sovereign-command constitutionalism that dominated the eighteenth century.
Against a backdrop of constitutional polarity in Britain and the American colonies, the Revolution unfolded as the older higher-law constitutionalism of Coke and seventeenth-century common lawyers receded while the rising doctrine of parliamentary supremacy and sovereign command gained ascendancy George III and the Tory majority in Parliament embraced a view that statute-making is by definition consistent with the English constitution and saw nothing constitutionally problematic in Parliament’s revenue measures and internal regulations imposed on the colonies By contrast, the colonists and the Whig minority continued to understand the empire’s relationship in terms of seventeenth-century higher-law principles and resisted parliamentary taxation and internal regulation as violations of fundamental rights They invoked the maxim that if one man’s estate may be taken from him and given to another without his own consent, then surely the major part of a town or other inferior powers cannot do it, a point they supported with references like the Massachusetts case cited in Hutchinson’s collection.
Scholars note that nine provisions of Magna Carta were woven into Massachusetts’ Body of Liberties, drafted in the 1630s in response to Governor Winthrop’s intrusive and trivial laws They also observe that late colonial American lawyers understood Coke’s Bonham’s Case as recognizing a judicial power to disregard or invalidate unreasonable or unconstitutional statutes Moreover, during the seventeenth century Magna Carta came to be closely identified in the colonies with all documents of constitutional significance, serving as a symbol and reminder of the principles binding on government, and Coke’s dictum in Bonham’s Case was cited beyond New England even before its notable revival by Otis.
Medieval English jurists, guided by Bracton and the Year Books, helped bring Stuart statecraft to an end, while the framers of the United States Constitution drew on Magna Carta and Coke upon Littleton as enduring legal influences Powell argues that the subversion of the classical English common law was largely ignored in America Corwin and other scholars also engage with these linkages between English legal tradition and American constitutional development.
"Higher Law" Background (pt 2), supra note 70, at 367 (suggesting that few judicial pronouncements are more important to the origins of American constitutional theory than Coke's dictum in Bonham's Case)
157 4 REID, CONSTITUTIONAL HISTORY, supra note 142, at 4, 56.
Under the new theory, England's constitution is no more than the set of laws, institutions, and traditional principles for governing the nation and is legally subject to alteration by Parliament at any time, a view cited in id at 4-5 and supported by Grey's Fundamental Law (supra note 29, at 866–67) and Meyler (supra note 67, at 12).
159 See BAILYN, IDEOLOGICAL ORIGINS, supra note 142, at 30-31, 47; JACK N RAKOVE, ORIGINAL
MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 211 (1996); WOOD, supra note 147, at 13-15; supra notes 147-49 and accompanying text.
Magna Carta, due process, and fundamental common law rights 16 1 Ultimately, of course, this conflict was resolved by revolution and independence.
During the pre-revolutionary period, colonial resisters challenged parliamentary control by appealing to higher-law constitutionalism rooted in seventeenth-century England, drawing on Magna Carta and Coke’s dictum that rulers are bound by the law This framework portrayed government power as legitimate only when constrained by established legal norms, reinforcing the colonists’ claim that taxation and governance must operate within the rule of law rather than through unchecked authority.
Bonham's Case and 6 Paxton's Case involved a royal customs officer who sought a writ of assistance—a broad general search warrant—to raid colonists' homes for smuggled goods Opposing the writ, colonial lawyer James Otis invoked higher-law constitutionalism, citing Bonham's Case and declaring that “As to Acts of Parliament, an Act against the Constitution is void; an Act against natural Equity is void,” and that if Parliament acted “in the very Words of this Petition,” it would be void He argued that Parliament was not “the final arbiter of the justice and constitutionality of its own acts”; rather, “the validity of statutes must be judged by the Courts of Justice,” foreshadowing, as John Adams later noted, the fundamental American constitutional principle that “it is the duty of the judiciary to declare unconstitutional statutes void.” Otis also drew on Magna Carta and Coke's Second Institute to emphasize that judicial review, not parliamentary supremacy, should restrain legislative power.
161 2 REID, CONSTITUTIONAL HISTORY, supra note 142, at 14, 138; Grey, Fundamental Law, supra note
162 See MoW, supra note 151, § 49, at 127 ("T]he fundamental character of the constitution of the British
Empire was generally seen as unalterable by mere parliamentary fiat, a premise that helps explain why the Founding Fathers framed government within an ancient constitutional order rather than relying on a single legislative act Rakove emphasizes that long-standing constitutional principles endure beyond ordinary majorities, underscoring the limits of parliamentary power John Phillip Reid argues that the Founders read legal history as a guide to Anglo-American liberty, rooted in an ancient constitution that constrains sovereignty John C Miller’s Origins of the American Revolution places these ideas within the broader emergence of a distinct liberty grounded in constitutional tradition Together, these works show that the American project drew on a venerable legal past to transform imperial authority into a constitutional framework designed to preserve liberty.
169 (1943) (observing that "natural law and the rights of Englishmen" constituted sources of constitutional argument deployed by the colonists against Britain).
Due Process and Unenumerated Rights in the Post-
Higher-Law Constitutionalism and Natural and
The English constitution offered only an incomplete justification for the American Revolution because revolt required withdrawal from that constitutional framework Accordingly, the Declaration of Independence opens with natural-rights arguments drawn from Locke’s Second Treatise rather than appeals to higher-law constitutionalism rooted in English common law Yet colonial thinkers also believed the common law captured and reflected natural rights and natural law—imported from seventeenth-century England—which allowed them to fuse the Declaration’s appeal to natural rights with claims about customary rights grounded in common law This uneasy blend of natural right and common-law premises, characteristic of both seventeenth-century and pre-revolutionary constitutional jurisprudence, was carried forward into independence.
The Declaration follows its natural law introduction with a long list of common law rights and liberties which George III was alleged to have either
192 STONER, LIBERAL THEORY, supra note 70, at 186; Grey, Fundamental Law, supra note 29, at 890.
Becker argues that independence from Great Britain was justified on natural rights grounds rather than on British law, linking the decision to universal natural-law principles; Corwin shows how Locke’s natural-law ideas were incorporated into American constitutional theory, helping shape the Founders’ emphasis on a higher law that limits governmental power (Becker, supra note 184, at 20–21; Corwin, "'Higher Law" Background (pt 2), supra note 70, at 383.)
195 See RAKOVE, supra note 159, at 293; 1 REID, CONSTITUTIONAL HISTORY, supra note 142, at 5; STONER, LIBERAL THEORY, supra note 70, at 186.
Scholars note a tension in the Declaration of Independence between its preamble’s assertion of natural rights and the body’s legalistic appeal to specific English rights As Rakove observes (see Rakove, supra note 159, at 293), this tension reveals the framers’ effort to ground revolutionary principles in universal rights while nonetheless appealing to established legal traditions in English law.
2009] AN ORIGINALIST DEFENSE OF SUBSTANTIVE DUE PROCESS 623 violated, neglected, or failed to secure against parliamentary encroachment 1
The Declaration accuses the King of conspiring with Parliament to subject the colonies to a jurisdiction foreign to our constitution and unacknowledged by our laws, signaling a fundamental breach of the colonies' legal order It uses "constitution" in the Whig sense—as a body of fundamental laws that limit government—and echoes Otis's and Mason's higher-law arguments in Paxton's Case and Robin v Hardaway.
The Declaration of Independence argued that Britain's violation of natural and customary rights justified revolution, a claim that resonates with seventeenth-century notions of the law of the land and due process that restrict the powers of the crown and Parliament In the eyes of the colonists, these legal principles framed tyranny as illegitimate and established that legitimate authority must protect rights rather than violate them By tying rebellion to foundational legal concepts, the Declaration cast opposition to British rule as a defense of constitutional order rather than mere insubordination It presented liberty as a universal right grounded in natural law, and argued that when government fails to safeguard these rights, revolution becomes not only justifiable but necessary.
The Declaration of Independence (1776) portrays the history of the present king of Great Britain as a history of repeated injuries and usurpations designed to strip the colonies of their rights and liberties It catalogs specific grievances, including the indefinite dissolution of colonial legislatures, the veto of laws that would create an independent colonial judiciary, and the maintenance of standing armies in the colonies during peacetime It also condemns the quartering of troops in colonists’ homes, the embargoing of colonial trade, and taxes imposed without colonial consent or representation in Parliament, as well as the denial of trial by jury and other legal protections Taken together, these acts illustrate a pattern of tyranny that justified the colonies’ decision to declare independence.
The "listing of constitutional grievances" in the Declaration reflects that the rights it asserts derive from British constitutional theory and English common law (I Reid, Constitutional History, supra note 142, at 92) Stoner describes the objections articulated in the Declaration as rooted in liberal theory (Stoner, Liberal Theory, supra note 70, at 187) Sherry notes the connection of these rights to the English Bill of Rights, the Declaration of Independence, and state declarations of rights (Sherry, supra note 29, at 1127, 1133).
198 THE DECLARATION OF INDEPENDENCE para 15 (U.S 1776) (emphasis added); accord JAMES WILSON,
An Address to the Inhabitants of the Colonies (1776), reprinted in James Wilson's Collected Works, argues that the grand object of the Union of the Colonies was the reestablishment and security of their constitutional rights This framing presents political union as a constitutional project aimed at safeguarding liberty rather than mere geopolitical consolidation Thus, the address articulates the foundational purpose of colonial unity around protecting constitutional rights.
199 See STONER, LIBERAL THEORY, supra note 70, at 188 The term "constitution" in the Declaration
Rather than signaling something as narrow as any single colonial charter, the term should be understood in the broader British sense—as the complete blend of offices, principles, and fundamental laws that give the polity its form Taken together, the sentence suggests that independence, while necessarily a step beyond the existing constitution and rooted in the most foundational political principles, nonetheless unfolds along a well-trodden path.
200 See supra notes 164-66, 179-81, and accompanying text.
Locke argued that legislative power should not extend to extemporary decrees, special or partial laws, or laws contrary to the law of nature, a view that closely aligns with the modern concept, if not the original meaning, of due process of law STONER notes that the specifics of the common law and the ancient constitution gave Locke's natural rights theory its distinctive form, as that theory ordered the particulars of the common law It was precisely Britain’s failure to respect these constitutional limits that justified the colonies' withdrawal from the empire.
Constituting Post-Revolutionary State Governments
After formally breaking away from Britain, the newly independent states had to establish sovereign governments that dispensed with royal appointments and the aristocratic framework of the British constitutional monarchy They generally adapted that model to a republican system by instituting a popularly elected bicameral legislature and by weakening the executive, narrowing prerogatives and placing the executive largely under legislative control Most states also set up a separate judiciary, though it is doubtful this created true judicial independence In any event, the state legislatures became the most important and powerful branch of the new governments.
That revolutionary Americans carried higher-law constitutionalism into independence, as I have argued, 2 0 7 is reflected in their post-independence
202 See MILLER, supra note 162, at 8 (referring to British restraints on colonial trade); McCormack,
Lochner, supra note 148, at 446-47 (referring to the "limitation on government" suggested in the Declaration of Independence).
Bailyn, in Ideological Origins of the American Revolution, explains that the English government was organized around royalty, nobility, and the commons, and notes that the balance of the American Constitution was not expected to be the result of a symmetrical matching of social orders with powers of government (see Bailyn, Ideological Origins, supra note 142, at 71) Friedman, in A History of American Law (1973), notes the broader context of the development of American law.
With the old ties to England snapped, the colonies asserted their independence by codifying essential political choices in written constitutions, signaling a shift toward constitutional self-government The collapse of royal authority opened the way for colonists to create new and superior forms of government Their experiences taught them to repudiate, more decisively than Englishmen ever had, the means by which royalty and nobility had long oppressed the liberties of the people.
Rakove argues that by stripping the executive of its political independence and prerogatives, the new state constitutions gave the assemblies the same supremacy Parliament had enjoyed since 1689 Wood describes the approaches of various states in establishing new governmental entities, illustrating the diversity of models drafted during the revolutionary era An appendix describes the attributes of the various state constitutions in force at the time of the American Revolution.
Historical analysis of colonial governance shows that colonists did not perceive a clear separation of powers among the legislative, executive, and judicial branches The courts were alternately seen as part of the executive department or as extensions of the legislature, reflecting contested boundaries between branches of government Moreover, legislatures exercised extensive supervision and control over the state courts, underscoring the degree to which political oversight extended into the judiciary.
State constitutions traditionally combined a written plan of government, enacted or affirmed by the legislature, with natural and customary rights that long predated any textual charter and might not be written at all Following the British pattern, American higher-law constitutionalism held that these rights exist prior to any government frame or writing As Professor Sherry argues, after independence the written state constitution or charter served as the sole source of fundamental law for shaping the internal structure of government, but did not define its relation to the citizenry Because natural and customary rights were believed to exist independently of any writing, they did not need to be explicitly enumerated in order to function as limits on state action; and while textual enumeration clarified that these rights were a natural birthright and enforceable against both legislative and executive power, it did not thereby create the rights themselves.
The distinction between frames of government enacted as positive law, and natural and customary rights existing independent of positive law, is evident in
208 See FRIEDMAN, supra note 203, at 103 (referring to the two functions of a constitution-providing a
"terse exposition of the permanent shape of the government" and listing essential rights); Sherry, supra note
Some scholars view the constitution as a “declaration of first principles” and as “a charter of government” or an allocation of powers among the parts of the government (29, at 1146); see also McIlwain, supra note 54, at 244, which implies that some revolutionary state constitutions formally distinguished a “bill of rights” from a “frame of government.”
209 Sherry, supra note 29, at 1133; see supra text accompanying notes 178-206.
As Sherry notes (210 Sherry, supra note 29, at 1135) and in accord with McCormack's discussion of Lochner ( supra note 148, at 446-447), the notion of inalienable rights imposes limits on the claims that government may make on individuals, and it posits that these claims are not dependent on human laws or constitutions but belong inherently to all persons.
According to Wood (supra note 147, at 286–87), the 1780s marked a pivotal shift in constitutional theory: the view of state constitutions as positively enacted forms of government yielded to an understanding of those constitutions as limits on the powers of the government it created, a change that in turn protected individual rights.
211 See Sherry, supra note 29, at 1146 (referring to the "non-positive" nature of constitutions); see also
Two scholarly perspectives frame the nature of legal rights Bailyn’s Ideological Origins argues that legal rights are entitlements grounded in the eternal laws of right reason, existing independently of positive law and serving as the standard by which the legitimacy of legal rules is measured By contrast, Rakove contends that state bills of rights functioned less as enforceable constitutional law and more as statements of first principles, providing normative standards by which the public can judge the performance of their elected officials.
212 See BAILYN IDEOLOGICAL ORIGINS, supra note 142, at 184-88 (suggesting that the enumerated rights existed before they were enacted).
Following independence, state constitutions largely established frames of government while only declaring or guaranteeing natural and customary rights Notably, five of the original thirteen states, plus Vermont, enacted extensive textual enumerations of natural and customary rights in declarations or bills of rights, distinctly separating these from the texts that framed the new governments Virginia and North Carolina even placed their frames of government and their declarations of rights in entirely different documents enacted at different times This clear distinction between frames of government and declarations of rights also emerges in the ratification debates, illustrating how the separation shaped early constitutional development.
214 E.g., MASS CONST OF 1780, pt I ("A Declaration of the Rights of the Inhabitants of the
Commonwealth of Massachusetts"), reprinted in I BENJAMIN PERLEY POORE, THE FEDERAL AND STATE
These references document foundational American legal documents, including the Constitutions, Colonial Charters, and Other Organic Laws of the United States (pp 956–957, Washington: Government Printing Office, 2nd ed 1878) They also point to the Virginia Bill of Rights of 1776 (p 1908), described as a declaration of rights and reproduced in 2 Poore, supra, at 1908 For broader context, see Wood, supra note 147, at 269 and 271, which discusses these authorities and their role in the early American rights tradition.
Scholars highlight ringing declarations of universal rights, and as Bailyn argues in The Ideological Origins of the American Revolution, there was little to no objection in 1776 when the idea was proclaimed—and acted upon—that all the great rights should be guaranteed by the terms of a written constitution.
In 2008, the Supreme Court repeatedly emphasized that the Second Amendment did not create, but merely codified, the pre-existing natural right of self-defense Dist of Columbia v Heller, 128 S Ct 2783,
Vermont was not formally admitted as a state until 1790, after Massachusetts, New Hampshire, and New York renounced their territorial claims Nonetheless, it had already organized its own government and functioned as a separate, independent colony since the early 1770s, and it adopted its own constitution following the 1776 declarations of independence.
See infra app for Maryland, Massachusetts, North Carolina, Pennsylvania, Vermont, and Virginia, which followed a common constitutional pattern New Hampshire enacted a constitution on this pattern in 1784, Delaware in 1792, and Kentucky upon its admission as a state in 1792 id.
Higher-Law Constitutionalism in Post-Revolutionary
After the Revolution, the historical record of judicial decisions and counsel’s arguments is mixed, but the weight of authority supports the proposition that the colonists carried higher-law constitutionalism into independence In several cases, courts issued opinions grounded in higher-law constitutionalism Rutgers v Waddington illustrates this approach: a New York homeowner whose property was used by a British merchant during the occupation of New York City challenged the general trespass statute The court held that the law of nations, long regarded as a branch of natural-law reasoning, is part of the common law and, therefore, limits the reach of the statute Consequently, the merchant was not liable under the statute for any use of the property.
In Trevett v Weeden, the court held that a Rhode Island criminal statute prescribing banknotes as legal tender and mandating bench trials for those
219 Rhode Island neither enacted a new state constitution nor affirmed its colonial charter as such See infra app.; see also Wilkinson v Leland, 27 U.S (2 Pet.) 627, 656 (1829); WOOD, supra note 147, at 133-34.
220 See infra app (Connecticut, Delaware, Georgia, New Hampshire, New Jersey, New York, and South
Carolina) New Hampshire enacted a frame of government and a declaration of rights in 1784, and Delaware followed suit in 1792 Id
221 See infra app (Connecticut, Maryland, Massachusetts, New York, North Carolina, Pennsylvania,
South Carolina, Vermont, and Virginia).
222 Rutgers v Waddington (N.Y City Mayor's Ct 1784), reprinted in I THE LAW PRACTICE OF ALEXANDER HAMILTON 392 (Julius Goebel, Jr ed., 1964) [hereinafter Rutgers v Waddington]
To determine the obligations of nations and the laws that govern their conduct, we must apply the rules of natural law to the international sphere; consequently, the law of nations is originally nothing more than the law of nature applied to nations and to their sovereigns.
224 Rutgers v Waddington, supra note 222, at 399, 402-06.
225 Id at 399-415. accused of refusing to accept the banknotes was "void" for violation of the
Even without a formal post-independence constitution or declaration of rights, Rhode Island's court acknowledged a constitutional right to trial by jury and accepted the defense's argument that the state's 'constitution' included Magna Carta and other natural and customary English rights The counsel also challenged the statute on substantive grounds, contending that the requirement that banknotes be accepted at par with gold and silver specie was an 'abominable act' against established constitutional principles.
"common right or reason," though the court did not reach this issue 22 8
In Butler v Craig, a Maryland court refused to enforce a statute that declared the offspring of illegal marriages between free whites and enslaved blacks to be slaves themselves, signaling a judicial resistance to racialized hereditary penalties The court seemingly embraced counsel’s argument that depriving the defendant of her freedom without a jury trial, based solely on her parents’ unlawful marriage conviction, violated the law of the land and due process protections outlined in Chapter 29 of Magna Carta.
Carta 23 0 Although the Maryland Declaration of Rights contained both law-of- the-land and jury-trial guarantees, 231 counsel did not discuss or cite them, relying solely on Coke's Second Institute, Edwardian confirmations of Chapter
29, and other English common law authorities 232
The strongest judicial statement of higher-law constitutionalism prior to
In Ham v McClaws (1791), a South Carolina court examined the state's attempt to impose a statutory fine and forfeiture on a newly arrived family for illegal slave importation, based on a law enacted while the defendants were in transit on the high seas Although South Carolina's Declaration of Rights contains a law-of-the-land clause, both the defendants’ counsel and the court relied on higher-law constitutionalism rather than the state's own provision The court conceded that the defendants fell within the statute's reach, illustrating the tension between state law and broader constitutional principles.
226 See Trevett v Weeden (R.I 1786), private report reprinted in 1 THE BILL OF RIGHTS: A
DOCUMENTARY HISTORY 417 (Bernard Schwartz ed., 1971) (argument of James Varnum).
Evidence shows that, before immigrating, the defendants actually inquired whether they could bring their slaves with them and correctly ascertained that the then-current law of South Carolina permitted the act (Id at 92; see also Id at 91).
From an originalist defense of substantive due process, counsel argued that, even under the strict letter of the statute, applying it to defendants would nevertheless be an "act of injustice" unintended by the legislature.
"contrary to common right and reason," "natural equity," and "Magna Carta"-common law code for violations of natural and customary rights:
There are fixed, time-honored principles—rooted in reason and the natural fitness of things—that underlie all laws; any statute that contravenes these principles is void and of no force Accordingly, laws that offend common right and reason are invalid, as are those that violate natural equity or the rights enshrined in Magna Carta.
The court held that statutes that run against the plain and obvious principles of common right and reason are absolutely null to the extent they would operate against those principles, and it must construe the statute in a way that is consistent with justice and the dictates of natural reason, even if that interpretation contradicts the strict letter of the law As Dean Treanor notes, eighteenth‑century courts often avoided unjust results by reading a statute not to apply to a situation that lies squarely within its language, a practice comparable to declaring a law unconstitutional as applied to a particular individual or situation Thus, courts could limit the statute’s enforcement against defendants when applying it would produce an unjust result.
Because applying the statute to the defendants’ situation would be evidently against common sense, the court held that the legislature could not have intended such an application Accordingly, the jury returned a verdict for the defendants.
On the other hand, several courts declined to decide cases on the basis of higher-law constitutionalism and instead relied directly on the texts of
237 Id at 93-94 (letters modernized) (emphasis omitted) (citation omitted).
240 William Michael Treanor, Judicial Review Before Marbury, 58 STAN L REv 455, 500-01 (2005).
241 McClaws, 1 S.C.L (1 Bay) at 96 (emphasis omitted).
These cases illustrate post-revolutionary reliance on higher-law constitutionalism, with the Symsbury Case potentially joining Trevett, Rutgers, Butler, and McClaws as examples, though the reporter’s failure to state clearly the court’s reasoning or counsel’s arguments makes it hard to tell whether higher-law authority actually guided the decision In the 1785 Symsbury Case (Connecticut), the legislature’s act divesting a town of title to property described in its charter was held invalid for lacking power to divest without the town’s consent In Holmes v Walton, a defendant convicted of illicit war trade protested the confiscation of smuggled goods on the grounds that he had been tried by a six‑person jury “contrary to the constitution, practices, and laws of the land,” and the court declined to apply Chapter 29, instead interpreting the New Jersey constitution’s jury-trial guarantee to require twelve-person juries based on the common law of England, immemorial custom, and prior colonial charters Likewise, Bayard v Singleton invalidated a North Carolina statute that eliminated the right to a jury trial in certain property disputes where the title descended from a British sympathizer, grounding the decision in the North Carolina constitution’s law‑of‑the‑land and jury‑trial clauses, which the court called “the fundamental law of the land.”
Finally, one other authority from this period requires extended discussion.
In early 1787, Alexander Hamilton addressed the New York Legislature to explain the meaning of New York’s law-of-the-land clause, highlighting its links to higher-law constitutionalism and the concept of due process in the founding era Because of these ties, Hamilton’s speech is frequently cited in debates over the original meaning of the Due Process Clause.
In a debate on a proposed statute that would have prohibited privateers who sailed for the British during the Revolution from holding public office in New
In York, Hamilton argued that the statute violated the New York Constitution's law-of-the-land clause and the due process clause, which had been enacted only weeks earlier as part of a statutory bill of rights.
243 Holmes v Walton (N.J 1780), reported by Austin Scott, Holmes v Walton: The New Jersey
Precedent, 4 AM HIST REV 456 (1899), cited and described in State v Parkhurst, 9 NIL 427 app (1802)
247 Hamilton served as counsel to the plaintiff in Rutgers v Waddington and was a principal author of The Federalist, as well as the sole author of its essays on judicial review; he was a resident of New York, the only state to propose an amendment to the Constitution guaranteeing the "due process of law" rather than the "law of the land." Some commentators believe that Madison lifted the language of the Due Process Clause directly from New York's suggested amendment (Meier, supra note 8, at 148; Schwartz, The Great Rights, supra note 94, at 151–54).
248 See Ely, Oxymoron Reconsidered, supra note 29, at 325-26
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