The phrase "law of the land" has two connotations of constitutional dimension. In general usage it refers to a higher law than that of common law declaration or legislative enactment. As a result of the supremacy clause, the Constitution is such a higher law; it is the "supreme law of the land." In the exercise of judicial review, the supreme court claims the office of ultimate interpreter of the Constitution. It has thus become commonplace to think of decisions of the Court as the law of the land.
A second connotation has a specialized meaning that reaches far back into English history and leaves its indelible mark on American constitutional law. In 1215, the barons of England forced King John to sign magna carta, pledging his observance of obligations owed to them in return for their fealty to him. Among the provisions was one that declared (in translation from the Latin): "No freeman shall be taken or imprisoned or dispossessed or outlawed or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the judgment of his peers, or by the law of the land." Magna Carta was necessarily a feudal document, but this provision was so worded that it retained meaning long after feudalism gave way to the modern constitutional state.
The term "law of the land" consequently continued in English usage, representing that body of fundamental law to which appeal was made against any oppression by the sovereign, whether procedural or substantive. By 1354 there had appeared an alternate formulation, "due process of law." In his Second Institute of the Laws of England (1642), Sir edward co*ke asserted that "law of the land" and "due process of law" possessed interchangeable meanings; nevertheless, the older version was not thereby supplanted. The petition of right (1628) played no favorites with the two terms, demanding "that freemen be imprisoned or detained only by the law of the land, or by due process of law and not by the king's special command, without any charge."
In the politically creative period after Independence, American statesmen preferred "law of the land" to "due process," apparently because of its historic association with Magna Carta. All eight of the early state constitutions incorporating the guarantee in full or partial form employed the term "law of the land"; and the same was true of the northwest ordinance (1787). The first appearance of "due process of law" in American organic law occurred in the Fifth Amendment to the United States Constitution (1791). But that switch of usage did not displace "law of the land." Throughout the nineteenth century state constitutions and state courts spoke in one voice or the other, or even both. As of 1903 a listing by thomas m. cooley of state constitutions incorporating the legacy from Magna Carta showed "law of the land" outrunning "due process of law." The trend subsequently has been to the latter phrase; yet a 1980 count found eleven states still expressing the guarantee as "law of the land."
The Glorious Revolution of 1688, embodying the political theory that parliamentary enactment was the practical equivalent of the "law of the land," presented a dilemma in interpretation when the versions of the guarantee were introduced into American thought and incorporatedinto most American constitutions. Legislative supremacy was unacceptable in the New World; the American view was that when sovereignty changed hands the English concept of limitations upon the crown now applied to the legislative as well as the executive branch. It followed that to construe the guarantee as forbidding deprivation of life, liberty, or property except by legislative enactment would be to render its protection meaningless. The puzzlement of American judges is understandable; only in the latter part of the nineteenth century had the concept been fully disentangled from the related concepts of regularized legislative process and separation of powers.
The guarantee inherited from Magna Carta is unusual among constitutional limitations. On its face it is not absolute but conditional. The government may not act against persons except by the law of the land or by due process. The thrust is arguably procedural, suggesting original intent may have been to guarantee the protection of a trial. But it can carry substantive meanings as well; those meanings emerged early and had fully developed in England by the late seventeenth century.
Although the wording and position of the state constitutional guarantees varied—some using "law of the land," others "due process of law"; some appending the guarantee to a list of procedural rights, others making it a separate provision—the variation made little difference in judicial response at the procedural level. Not so, however, with respect to substantive content. Where, as in the constitutions of the Carolinas, Illinois, Maryland, and Tennessee, the wording was close to a literal translation of Magna Carta, the guarantee was extended to vested rights, independently of the criminal provisions of the procedural connotation. On the other hand, Connecticut and Rhode Island courts sustained prohibition laws in the 1850s, holding that the phrase "due process of law" in their state constitutions was so enmeshed with entitlements of the criminally accused as to preclude inclusion of substantive right. A third series of cases, from Massachusetts, New Hampshire, New York, and Pennsylvania, read substantive content into the guarantee despite close interrelation with procedural protections. wynehamer v. new york (1856) requires special consideration. In that case the state's highest court invalidated a prohibition law, insofar as it destroyed property rights in existing liquor stocks, resting its decision on separate constitutional guarantees of both "due process" and "law of the land." Contrary to the opinion of some scholars, Wynehamer was not overruled by Metropolitan Board v. Barrie (1866); the former case applied to a law with retroactive application, the latter to one that was purely prospective.
The Fifth Amendment associates "due process" with other constitutional guarantees clearly procedural in character, and separates the guarantee of due process from the right against self-incrimination only by a comma. Yet in major decisions, dred scott v. sandford (1857), Hepburn v. Griswold (1870), and Adair v. United States (1908), the Supreme Court found substantive content in the clause.
In the fourteenth amendment, due process is not linked to criminal procedure protections, but resembles those state constitutional provisions that had been held in state courts to have substantive content. However, the Supreme Court has disregarded the distinction between the two due process clauses in the federal Constitution. The Court has been abetted by numerous commentators on the constitution who, intent on denying the substantive element in due process, have ignored or misinterpreted the history of state constitutional guarantees of "due process" and "law of the land." The freedom from procedural connotation of Fourteenth Amendment due process made easier the path of substantive content from dissent in the slaughterhouse cases (1873), to reception in Chicago, Milwaukee & St. Paul Railway Company v. Minnesota, (1890), to full embrace in lochner v. new york (1905). The Court's acceptance of the incorporation doctrine, with consequent reading into the Fourteenth Amendment of the various procedural protections enumerated in the bill of rights, largely equates the content of the two due process clauses. This development has written the final chapter in the reinterpretation of "law of the land."
Frank R. Strong
(1986)
Bibliography
Howard, A.E. Dick 1968 The Road from Runnymede: Magna Carta and Constitutionalism in America. Charlottesville: University Press of Virginia.
Rembar, Charles 1980 The Law of the Land: The Evolution of Our Legal System. New York: Simon and Schuster.
