NATHAN S. CHAPMAN & MICHAEL W. MCCONNELL

Due Process as Separation of Powers

AUTHORS. Nathan S. Chapman, Executive Director, Stanford Constitutional Law Center, Law Fellow, Stanford Law School; Michael W. McConnell, Richard and Frances Mallery Professor of Law, Stanford Law School. Thank you to Samuel Bray, William Baude, Robert Gordon, Larry Kramer, and Matthew Shapiro.

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Due Process as Separation of Powers INTRODUCTION I. DUE PROCESS AND THE LEGISLATURE IN ENGLISH AND EARLY AMERICAN LAW A. Magna Charta and Coke B. English Disputes About Parliament’s Power C. Revolutionary Arguments that Parliament Violated the Law of the Land D. Early State Experiments with Legislative Supremacy 1. Holmes v. Walton 2. Trevett v. Weeden 3. Bayard v. Singleton 4. Alexander Hamilton on Due Process

II. DUE PROCESS OF LAW AS A CONSTITUTIONAL CONSTRAINT ON AMERICAN LEGISLATURES A. The Constitution 1. General and Specific Provisions 2. The Due Process Clause B. Early Due Process Interpretations 1. Laws Purporting to Authorize Due Process Violations 2. Special or Retrospective Bills that Deprive Persons of Rights

III. APPLYING DUE PROCESS AS SEPARATION OF POWERS A. Analysis B. Applications 1. Modern “Substantive” Due Process 2. Legislative Acts that Violate Due Process 3. Executive Acts that Violate Due Process CONCLUSION

INTRODUCTION Scholars are showing renewed interest in the original understanding of the Due Process Clauses, and especially in whether that understanding is consistent with the Supreme Court’s modern practice of substantive due process. Not long ago, most scholars accepted John Hart Ely’s clever dismissal of the idea of substantive due process as an

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“oxymoron,” on the order of “green pastel redness”1 –with those of an originalist bent concluding that substantive due process is illegitimate2 and those of a substantive due process bent concluding that originalism is wrongheaded.3 Now, with the prestige of originalist interpretation (of various types) on the rise, even on the progressive left,4 we are seeing more serious attempts to discern whether an educated member of the public at the time of the founding,5 or perhaps at the time of adoption of the Fourteenth Amendment,6 would have understood the phrase “due process” as having a substantive component,7 meaning that judges would invalidate legislation on the basis of their perceptions of natural justice, reasonableness, or inalienable natural rights. Opponents of substantive due process tend to argue that due process meant neither more nor less than that officers of the government must follow the law of the land. Because Parliament, and Congress and state legislatures after Independence, is the ultimate authority as to what the law of the land is, having power either to “declare” the common law or to legislate changes to it, by definition all acts of Parliament or the legislatures conformed to the law of the land, and due process did not restrict them.8 1 JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 18 (1980). See also Ellis v. Hamilton, 669 F.2d 510, 512 (7th Cir. 1982) (Posner, J.) (“substantive due process” is an “oxymoron”). 2 See, e.g., Raoul Berger, “Law of the Land” Reconsidered, 74 NW. U.L. REV. 1 (1979); ROBERT BORK, THE TEMPTING OF AMERICA (1990); RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 21-44 (1997). 3 LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 71-77 (1996); see, e.g., MICHAEL PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS: AN INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING BY THE JUDICIARY (1982) (defending judicial lawmaking on extraconstitutional grounds); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977); Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703 (1975) (courts should not rely exclusively on the written constitution); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 STAN. L. REV. 843 (1978) (arguing on historical grounds that there is an unwritten constitution). 4 Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 Nw. L. Rev. 923, 932 (2009); Keith Whittington, The New Originalism, 2 Geo. J.L. & Pub. Pol’y 599, 605 (2004) (“Broadly originalist arguments are widespread and are increasingly common in liberal and progressive theory.”) (quotation omitted). See, e.g., District of Columbia v. Heller, 128 S. Ct. 2783, 2822 (2008) (Stevens, J., dissenting); AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY (2006); JACK M. BALKIN, CONSTITUTIONAL REDEMPTION 228 (2011); Jack M. Balkin, Framework Originalism and the Living Constitution, 103 Nw. L. Rev. 549 (2009); Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291 (2007). See also the work of the Constitutional Accountability Center. 5 Frederick Mark Geddicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 EMORY L.J. 585 (2009) (“law” in “due process of law” was understood to refer to an act that complies with natural law); Robert Riggs, Substantive Due Process in 1791, 1990 WIS. L. REV. 941. 6 Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 YALE L.J. 408 (2010) (due process of law did not include vested rights or general law theories in 1791, but it did by 1686). 7 CHESTER JAMES ANTIEAU, THE INTENDED SIGNIFICANCE OF THE FOURTEENTH AMENDMENT ch. 18 (1997); James W. Ely, Jr., The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 CONST. COMMENT. 315 (1999); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 STAN. L. REV. 843 (1978); Alfred Hill, The Political Dimension of Constitutional Adjudication, 63 S. CAL. L. REV. 1237, 1270-73, 1322-23 (1990);; Cf. Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. CHI. L. REV. 1127, 1132 (1987); RODNEY L. MOTT, DUE PROCESS OF LAW 34-36, 74-75, 123-24, 159-61 (1926). 8 The most important statement of this position is Justice Hugo Black’s dissenting opinion in In Re Winship, 397 U.s. 358, 378-82 (1970).

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Under this view, there could be no judicial review of legislation under the Due Process Clause. Supporters of substantive due process on originalist grounds tend to see at least the glimmer of the modern practice in any judicial decision reviewing the acts of a legislature on due process grounds, and in particular, in early decisions holding that legislation violated certain “vested rights.” Ryan Williams recently published an essay in this journal that presents a new twist on these accounts. According to Williams, the evidence shows that there was no widespread acceptance of the application of due process to the legislative branch (hence no substantive due process) as of the adoption of the Fifth Amendment in 1791, but that substantive understandings had become prevalent by adoption of the Fourteenth Amendment in 1868. This leads to the intriguing possibility that, as a matter of original understanding, substantive due process is legitimate as applied to state but not to federal legislation. We believe that none of these positions is entirely correct. To be sure, courts, statesmen, and educated observers used the term “due process of law” and the closely related term “law of the land” in several ways, and often disagreed about its meaning. Nonetheless, the meaning of these terms evolved in discernible ways over a several hundred year period, driven – we argue – by the increasing institutional separation of law-making from law-enforcing and law-interpreting. The separation of legislative, executive, and judicial powers served to clarify what is meant by the rule of law, and by extension the idea of due process of law. 9 Application to the executive came first, and 9 We are not the first to note the importance of the separation of powers in the original understanding of due process of law, but not many have given it pride of place, with the notable exception of Wallace Mendelson, A Missing Link in the Evolution of Due Process, 10 VAND. L. REV. 125, 136 (1956) (“Separation with its procedural connotations had been a ready, if narrow, bridge between orthodox procedural due process and the doctrine of vested interests in an age when legislatures habitually interfered with property by crude retrospective and special, i.e., quasi-judicial, measures.”). Mendelson’s thesis is that separation of powers allowed the evolution of due process of law. The causal connection may be more complicated than that: a commitment to the law of the land enabled colonial Americans to argue that Parliament had overreached well before the judicial power had been separated from it. In would appear that separation of powers and due process of law developed together. See infra at ___ Others have recognized that separation of powers was part of how some people thought about due process, but have not attempted to maintain that it was central to a plausible original understanding of it. See Williams, supra note [---] at 424; Harrison, supra note [--], at 520-24; Nathan N. Frost, Rachel Beth KleinLevine & Thomas B. McAffee, Courts Over Constitutions Revisited: Unwritten Constitutionalism in the States, 2004 UTAH L. REV. 333, 382 (“The doctrine of vested rights grew out of a recognition that when legislatures act like courts, the potential for abuse grows not only by the omission of some particular procedure in question -- such as trial by jury--but also by the departure from separation of powers.”); JOHN V. ORTH, DUE PROCESS OF LAW 48-49 (2003) (“The attempted exercise of [the judicial] power by another branch of government could be described as a procedural violation: just as a man could not be made a judge in his own case, so one who was not a judge could not make judicial rulings.”); John V. Orth, Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 Const. Comment. 337 (1997); DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS, 1789-1888, at 272 (1985) (“[C]onsiderable historical evidence supports the position that ‘due process of law’ was a separation-ofpowers concept designed as a safeguard against unlicensed executive action, forbidding only deprivations not authorized by legislation or common law.”); U.S. v. Lovett, 328 U.S. 303 (1946) (Frankfurter’s concurring opinion in a bill of attainder case); Hill, 63 S. Cal. L. Rev. at 1308 (“We may begin by noting that if a statute was deemed confiscatory, the statute was said to be void as an attempted judicial act because, under separation of powers doctrine, only a court, after ‘trial had .. and judgment pronounced,’ could effectuate

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reflected the Whiggish contraction of royal prerogative in favor of the supremacy of Parliament with respect to lawmaking, and in favor of the judiciary with respect to adjudication of the application of law to particular persons and cases. Fundamentally, “due process” meant that no action interfering with rights is permitted except with the authorization of law and according to its terms, and “law” came meant the common law as declared by Parliament (retrospectively) or as modified by general acts of Parliament (prospectively). By the time the Fifth Amendment was enacted, everyone agreed that due process applied to executive officials and courts. It meant that the executive could not deprive anyone of a right except as authorized by law,10 and that to be legitimate a deprivation of rights must be preceded by certain procedural protections: generally presentment, the divestment; and also because this was deemed to be a fundamental requirement of the law-of-the-land and due process clauses. The approach thus described implies a concern only for process. And sometimes no more than process was involved, as when a statute peremptorily divesting persons of property for nonpayment of taxes was invalidated on the ground that provision should have been made for judicial divestment instead. In this situation, the divestment could have been effected had the state gone about the matter differently. However, if a statute purported to vest A’s property in B, the statement that the statute was void as an attempted judicial act clearly had a substantive connotation, rather than one just involving process. For if B went to court to secure the title that the legislature had tried to give him, relief would be denied if the only basis for the claim was the vesting statute itself.”). See also opinion of Court of Claims Judge Madden in United States v. Lovett, 328 U.S. 303 (1946), where Congress enacted an appropriations rider that stopped the funding of three named executive official because they were suspected communists. Court of claims held that the statute could not operate to foreclose plaintiffs’ suit for backpay, and Judge Madden wrote a separate concurrence, concluding that the act was a violation of due process, citing Nichols v. Coolidge, 274 U.S. 531, 47 S.Ct. 710, 71 L.Ed. 1184, 52 A.L.R. 1081; Wallace v. Currin, 4 Cir., 95 F.2d 856; Minski v. United States, 6 Cir., 131 F.2d 614; United States v. Ballard, D.C.W.D.Ky., 12 F.Supp. 321. The Supreme Court upheld Madden’s judgment on the grounds that the congressional act was a bill of attainder and an ex post facto law. 10 Frank H. Easterbrook, Substance and Due Process, 1982 Sup. Ct. Rev. 85 (“due process” refers to common law procedures in place in 1791 plus any amendments made by legislature to those procedures); Edward S. Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 HARV. L. REV. 366, 371 (1911); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 15 (1980); LEONARD LEVY, ORIGINS OF THE BILL OF RIGHTS 248 (1999); ANDREW C. MCLAUGHLIN, A CONSTITUTIONAL HISTORY OF THE UNITED STATES 461 (1935); HERMINE HERTA MEYER, THE HISTORY AND MEANING OF THE FOURTEENTH AMENDMENT 125 (1977); HUGH EVANDER WILLIS, CONSTITUTIONAL LAW OF THE UNITED STATES 705-06 (1936); CHRISTOPHER WOLFE, THE ORIGINAL MEANING OF THE DUE PROCESS CLAUSE, IN THE BILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING

213 (Eugene W. Hickok, Jr. ed., 1991); Charles Grove Haines,

Judicial Review of Legislation in the United States and the Doctrines of Vested Rights and of Implied Limitations of Legislatures (pts. 1-3), 2 Tex. L. Rev. 257 (1924); 2 Tex. L. Rev. 387 (1924), 3 TEX. L. REV. 1 (1924); Andrew T. Hyman, The Little Word “Due”, 38 AKRON L. REV. 1, 2 (2005); Keith Jurow, Untimely Thoughts: A Reconsideration of the Origins of the Due Process of Law, 19 AM. J. LEGAL HIST. 265 (1975); Robert P. Reeder, The Due Process Clauses and “The Substance of Individual Rights”, 58 U. PA. L. REV. 191 (1910); Charles Warren, The New “Liberty” Under the Fourteenth Amendment, 39 Harv. L. Rev. 431 (1926); Ralph U. Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical-Interpretive Reexamination of the Full Faith and Credit and Due Process Clauses (pt. 2), 14 Creighton L. Rev. 735 (1981); Ralph U. Whitten, “Liberty” in the Due Process Clauses of the Fifth and Fourteenth Amendments: The Framers’ Intentions, 53 U. Colo. L. Rev. 117, 126-27 (1981); 2 William Winslow Crosskey, Politics and the Constitution in the History of the United States 1102-08 (1953); Myers, The End of Substantive Due Process? 45 Wash. & Lee L. Rev. 557, 614-15 (1988); Graham, Procedure to Substance--Extra-Judicial Rise of Due Process, 1830-1860, 40 Calif. L. Rev. 483, 484-86 (1952); Henkin, Privacy & Autonomy, 74 Colum. L. Rev. 1410, 1412 (1974); Kelly, The Fourteenth Amendment Reconsidered, 54 Mich. L. Rev. 1049, 1052 (1956); Linde, Due Process of Lawmaking, 55 Neb. L. Rev. 197, 237-38 (1976); Monaghan, Our Perfect Constitution, 56 N.Y.U. L. Rev. 353 (1981).

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indictment, and trial by jury. More controversially, we contend that, by this time, most informed American legal observers -- including Madison, Hamilton, Jefferson, Iredell, Chase, and Tucker -- also believed that the principle of due process extended to acts of the legislature, in two narrow and specific ways: statutes that purported to empower the other branches to deprive persons of rights without due process were subject to judicial review, and acts by the legislature that deprived specific individuals of rights or property were subject to similar challenge, either legislatively or judicially. It is important to emphasize, however, that no significant figure so much as hinted at the interpretation of due process that we now call “substantive due process.” The distinctive core of modern “substantive due process” and the features that make it most controversial are twofold: (1) its vindication of “rights” that have no source in positive law, and (2) its treatment of those rights as inviolate, even as against prospective and general laws passed by the legislature and enforced by means of impeccable procedures.11 No scholar has identified any significant legal decision, argument, or commentary prior to adoption of the Fourteenth Amendment, let alone the Fifth, that embodies either of these features. Every known public application of the principle of due process involved the deprivation of rights—usually property rights--that had their source in positive law, whether written constitutional, statutory, or common law. There are no examples of courts concluding that individuals “should have” certain rights that legislatures had denied to everyone. Moreover, every known application of the principle of due process involved claims that the imperiled rights were being taken away without adequate process: they had been taken away by a court without proper legal procedure, by an executive official without prior authorization by a legislature or a court, or by a legislature through an act that was effectively a judicial decree. There are no examples of courts concluding that rights other than those enumerated in positive constitutional law are impervious to prospective and general legislative repeal. Originalist debates about substantive due process have long labored under the burden of applying the Court’s “substantive due process” and “procedural due process” dichotomy to eighteenth and nineteenth century material. We think the dichotomy is vague as used by the Court and anachronistic as applied to the historical material. For instance, the vested rights doctrine has been considered by some scholars to be a “substantive” interpretation of the due process clause.12 That doctrine did not hold, however, that one could not be deprived of a vested property right; it held that those rights could only be taken after a court’s judgment in a specific dispute under a general and prospective law. The same is true for the so-called “general law” cases.13 Both sorts of 11 See infra at [--] (discussing Lochner v. New York and Griswold v. Connecticut). Under a softer version of substantive due process, courts identify “rights” not grounded in positive law, and then determine, on philosophic premises, whether the legislature’s reasons for denying those rights are sufficiently persuasive. This version is no more legitimate under the original meaning of due process than the stronger version. See infra at [--] (discussing Lawrence v. Texas). 12 See Williams, supra note [--[, at 423-24; Harrison, supra note [--], at 519 (“Whether to call this substantive due process is a matter of nomenclature. It is substantive due process by the definition used in this Article, because it results in limitations on legislative power that are unrelated to the procedures prescribed by the legislation.”). 13 Id. See infra, ---

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cases are better understood as vindicating individual claims of abuses by the legislature of separation of powers principles. Scholars have erred by shoehorning them into the same “substantive due process” category occupied by the Court’s modern jurisprudence. The antebellum cases had nothing to do with unenumerated but inviolable rights. The Constitution does place some “substantive” rights beyond the reach of Congress and the states,14 but their source is not the due process clause. We emphasize that our argument here is confined only to the original meaning, and only to the Due Process Clause. Our argument is not based on any jurisprudential skepticism about the desirability of judicially enforceable unenumerated rights as a general matter, but solely on the historic understanding of “due process.” We take no position here on whether other provisions of the Constitution, such as the Ninth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment, empower courts to engage in practices akin to substantive due process. Those provisions have their own distinctive history.15 Our argument has no bearing on whether the Ninth Amendment, the “Proper” half of the Necessary and Proper Clause, the Privileges or Immunities Clause of the Fourteenth Amendment, or other clauses of the Constitution might plausibly be read to support something akin to substantive due process, namely, the judicial recognition of rights originating in something other than positive law, in the teeth of legislative enactments to the contrary. We argue only that “due process” entailed no such thing. Part II …. Part III … Part IV

I. DUE PROCESS AND THE LEGISLATURE IN ENGLISH AND EARLY AMERICAN LAW The due process and law of the land clauses of the American state and federal constitutions spring from Magna Charta and the English customary constitution. Magna Charta limited the king’s power to deprive a person of rights to cases where it was authorized by existing law and adjudicated by a court. After a period of silence during the Tudor reign, this provision gained new vitality in the hands of Sir Edward Coke, whose influence on early American lawyers was unparalleled. Coke insisted that the king was 14 See the first eight amendments of the Bill of Rights, U.S. Const. amends. I-VIII.. 15 One of us has offered his interpretation of those clauses elsewhere. See Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation?, 5 N.Y.U. J.L. & LIBERTY 1 (2010) (arguing that the Ninth Amendment recognized equitable interpretation under which statutes would not be interpreted to abrogate natural rights in the absence of evidence of clear and specific legislative intent to do s0); Michael W. McConnell, The Right to Die and the Jurisprudence of Tradition, 1997 UTAH L. REV. 665 (1997) (arguing that the Privileges or Immunities Clause, at most, nationalized longstanding and widespread traditional liberties originating in state law).

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subject to the common law as expressed by custom and Parliamentary declaration. Thus persons could be deprived of rights only by the combined effort of at least two different institutions with different material and political interests: the executive and Parliament, or the executive and the courts. The Petition of Right, championed in Parliament by Coke and Sir John Selden, declared in no uncertain terms that the executive could deprive persons of rights only according to existing law and procedure. To be sure, Coke never claimed that Parliament was limited by the law of the land or due process of law (much less by natural law). This was because Parliament was both a legislature and the highest court in the land: according to ancient custom, Parliament declared the common law even as it was effectively altering it. But he did interpret the requirement of due process as implementing what we would now recognize as separation of powers principles: subjects may be deprived of rights only pursuant to the common law, which included customary law and statutes enacted by Parliament. This argument gained new resonance against legislatures more than a hundred years later when Whigs in England and in the American colonies accused Parliament of depriving subjects of rights without due process of law by failing to give them adequate common law procedures. A. Magna Charta and Coke Since its origins in Magna Charta, the requirement of due process has gone handin-hand with checks on the unilateral exercise of power that modern scholars would recognize as separation of power principles. The thirty-ninth chapter of Magna Charta provided that no freeman was to be “taken,” “imprisoned,” “disseised,” “exiled or in any way destroyed,” “except by the lawful judgment of his peers [or/and] by the law of the land.”16 The provision—which came to be known as Chapter 29 after its location in the Articles of the Barons17— subjected the crown to law. The king could no longer unilaterally deprive freemen of their life, liberty or property and call it law.18 In an extension of the language of Chapter 29, a 1354 statute of Edward III first used the phrase “due process”: “no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.” 19 It is not entirely clear whether, or how, the import of this language differs from Chapter 29. Perhaps they are two ways of saying

16 A.E. DICK HOWARD, MAGNA CHARTA TEXT AND COMMENTARY 43 (U. P. of Virginia, 1964). The Latin conjunction can be translated as either “and” or “or.” Some scholars believe that it meant “and” to the parties of the original Charter. See MCKECHNIE, MAGNA CHARTA 381. Sir Edward Coke translated it as “or,” however, and most American constitutions that included a law of the land clause opted for the “or” construction. MOTT, supra note [--], at 3 n. 8. At least one court considered whether the disjunctive construction meant that the government may deprive someone of a right with a “law of the land” even without a trial by peers. See, e.g., Zylstra v. City of Charleston, 1 S.C.L. (1 Bay) 382 (Ct. Com. Pl. 1794) (Waties, J.). 17 MOTT, supra note [--], at 3 n. 7. 18 HOWARD, supra note 16 at 6-7. See generally J.C. HOLT, THE MAKING OF MAGNA CHARTA (U.P.Va. 1965). 19 28 Edw. 3, c. 3 (1354) (Eng.), reprinted in 1 THE STATUTES OF THE REALM 345 (1810). Three years earlier, a statute used a similar phrase, “by the Course of the law,” in a similar context. See MOTT, supra at note [--], at 4 n. 11. See also Jurow, supra note [-] at 26.

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the same thing, as Lord Coke would later conclude.20 Or the term “process” may have had a narrower procedural focus – meaning, in effect, that the government had to proceed according to the appropriate common law writ. 21 The “law of the land,” by contrast, appears to point to a broader conception of the rule of law, with more emphasis on the source of legal authority – common law or statute – than on the procedures for carrying it out. Because the common law specified certain procedures, however, the “law of the land” concept largely incorporated the procedural protections of the “due process” idea. In an era before genuine legislation, when Parliament tended more to pass acts “declaring” or explicating the common law than changing it, the two formulations were not much different in practical effect. The Fifth and Fourteenth Amendment Due Process Clauses derive from some combination of these two provisions. The individual rights implications of Magna Charta are well appreciated, but not enough attention has been paid to their connection to separation of powers. Magna Charta interposes an independent body of decisionmakers, a jury of one’s peers, between the crown and the subject. Before a subject may be punished, taxed, or otherwise deprived of his rights, the crown must persuade a jury of the subject’s peers that the deprivation is appropriate. This is the “procedural” face of due process, but the focus was not on abstract “fairness” – notice and the right to be heard – as modern procedural due process jurisprudence suggests. The focus instead was institutional, on courts and juries as a check on royal authority. The requirement of due process lay dormant during the Elizabethan period of church reformation and emerging national consciousness, when “royal claims to absolute power” were at high tide.22 Under the less agile political leadership of the Stuart kings, and under the withering opposition of Sir Edward Coke, the paladin of the common law who served successively as Attorney General, Chief Justice of the Court of Common Pleas, and Speaker of the House of Commons during the early Stuart period,23 due process served to limit the prerogative powers of the crown, in defense both of courts and of an emerging Parliamentary supremacy over the content of law. Coke’s views are important for us not because they were typical of his day, but because they were the chief source of the American Whig conception of constitutionalism.24 Coke spent much of his career defending the supremacy of “the common law, statute law, or custom of England,”25 over assertions of royal prerogative26 and 20 Edward Coke, 2 Institutes of the Lawes of England 50 (The Lawbook Exchange, Ltd. 2002) (1642). 21 Jurrow, supra note [--] at 267 ( “judgment and execution were not to be rendered against any man unless and until he was brought personally before the court by the appropriate writ.”). 22 PHILIP HAMBURGER, LAW AND JUDICIAL DUTY 204. 23 The classic biography of Sir Edward Coke remains CATHERINE DRINKER BOWEN, THE LION AND THE THRONE (1953). A good biography of Coke’s early career is ALLEN BOYER, SIR EDWARD COKE AND THE ELIZABETHAN AGE (2003). 24 See, e.g., 12 Thomas Jefferson, Writings iv (Mem. ed. 1903) (Coke on Littleton “was the universal lawbook of students, and a sounder Whig never wrote, nor of profounder learning in the orthodox doctrines of the British Constitution, or in what was called British liberties”). 25 2 Inst. 46. 26 See, e.g., The Case of Proclamations (1610); The Petition of Right (1628).

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competitive bodies of law, 27 such as ecclesiastical law, martial law, and local statute or custom.28 The common law, he maintained, had developed organically through the adjudication of the courts since time immemorial,29 as well as through certain declaratory acts of Parliament, which themselves were believed to articulate principles with an ancient origin. This customary law predated the rule of any English king, and therefore, the king was subject to the law.30 The law of the land was at once a substantive and an institutional check on the king’s power to take property, seize or imprison individuals, or otherwise deprive his subjects of their established rights. Substantively, the king could deprive subjects of their rights only pursuant to customary law or an act of Parliament, and not by unilateral executive decree. Institutionally, the king was required to act through the instrumentalities of intermediary institutions not entirely under his control, such as grand and petit juries and courts with professional judges. For instance, in the Case of Proclamations, James I issued two proclamations that prohibited “new Buildings in and around London” (for health reasons) and “the making of starch from wheat,”31 based solely on royal prerogative not authorized by Parliament. On consideration by the court, Lords Ellesmere and Coke adopted different approaches. Ellesmere advised the judges “to maintaine the power and Prerogative of the king,” urging that “in cases in which there is no authority and [precedent],” the judges should “leave it to the king to order it according to his wisdome.” Ellesmere was arguing for the King’s power to act wherever that act had not been forbidden by custom or statute.32 Coke, then Chief Justice, framed the issue differently. To him, the king’s proclamations amounted to a unilateral change in the common law that would result in less freedom for the king’s subjects. The king was not authorized by law to “change any part of the Common Law, nor create any Offence by his Proclamation, which was not an Offense before, without Parliament.”33 Coke was not arguing that the government would violate law (including a notion of natural law) to prohibit new buildings in London or the making of starch from wheat; he was arguing that according to custom any new prohibitions must receive Parliament’s consent.34

27 Prohibitions del Roy, 77 Eng. Rep. at 1343, reprinted in 1 THE SELECTED WRITINGS OF EDWARD COKE 481 (Steve Sheppard ed., 2003). HAMBURGER, supra note 22 at 207 (“the independence of the non-common-law courts seemed nothing less than a threat to the supremacy of the law of the land”). 28 See, e.g., The Chamberlain of London’s Case (K.B. 1590), Coke, 5 REPORTS 63a. Coke was far from alone on the supremacy of the common law over corporate by-laws, customs, and other subordinate law. See generally Hamburger, supra note 22. See also Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116 YALE L. J. 513 (2006); Barbara Aronstein Black, An Astonishing Political Innovation: The Origins of Judicial Review, 49 PITT. L. REV. 962 (1988). 29 See, e.g., POCOCK, supra note [--], at 39-40, 261. 30 See Michael W. McConnell, Tradition and Constitutionalism Before the Constitution, 1998 ILL. L. REV. 173 [jump cite] (1998). 31 Case of Proclamations (Sept. 8, 1610), Coke, 12 Reports 76. 32 See, e.g., Justice Jackson’s opinion in The Steel Seizure Case. 33 Id. See, e.g., HAMBURGER, supra note 22 at 199-02; Michael W. McConnell, Tradition and Constitutionalism Before the Constitution, 1998 ILL. L. REV. 173 (1998). 34 HAMBURGER, supra note 22 at 199-02.

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Modern readers will recognize this as an affirmation of the separation of powers between the legislative and executive branches of government: only the legislature can make law; the executive merely enforces it. In Coke’s day, however, that way of understanding the issue was complicated by the preeminent status of the common law, and by Parliament’s traditional function as the highest court in the land, as well as the legislature.35 To Coke, the most important and fundamental species of law was the common law, whose authority lay in its ancient character.36 For the most part, he understood Parliament’s legislative function as one of declaring rather than making law.37 Coke’s notion of separation of power was based less on the division between legislature and executive than on the subordination of the Crown to the common law, with all its procedural requirements. Coke also undertook to protect the separation between the executive and judicial functions. In the course of a jurisdictional dispute between common law and ecclesiastical courts, King James asserted to decide the case personally38 According to Coke’s account, James claimed that “the Judges are but the delegates of the King, and that the King may take what Causes he shall please to determine, from the determination of the Judges, and may determine them himself.”39 Coke insisted that the ancient constitution of the realm required that the king leave the decision of cases to his judges, who are trained in the law. In response to James’s claim that his faculty of reason was as great as his judges’, Coke famously replied that “causes which concern the life, inheritance, or goods, or fortunes” of English subjects “are not to be decided by naturall reason but by the artificial reason and judgment of the Law, which law is an art that requires long study and experience, before a man can attain to the cognizance of it.”40 When pressed that the king was in fact the source of the laws of England, Coke put a fine point on his position: echoing Bracton,41 he asserted that the king was under the authority of no man, but of God and the law.42 Coke’s position assumed an almost mystical reverence for the ancient law of the land, but it held the kernel of modern separation of powers: the executive must not perform the function of the judiciary. Although these early Jacobean controversies were confined to the judicial forum, a comparable issue reached Parliament in during the reign of Charles I in the Five Knight’s Case. In 1627, the king, strapped for cash and unwilling to call a Parliament, unilaterally imposed a tax – a forced loan -- without parliamentary consent. Five nobles refused to pay 35 See Coke, 4 Institutes, 3, 4, 28. Charles H. McIlwain, The High Court of Parliament and Its Supremacy 139-48 (1910); id. at 148 (Coke “never recognized the antithesis between legislation and adjudication by which the moderns have interpreted him”). 36 J.G.A. Pocock, The Ancient Constitution and the Feudal Law (1987). 37 Id. 38 Prohibitions del Roy (1607), first published in the 12 Reports 63, reprinted in 1 THE SELECTED WRITINGS OF EDWARD COKE 478-81 (Steve Sheppard ed., 2003). 39 Prohibitions del Roy, reprinted in The Selected Writings of Edward Coke at 479. 40 Prohibitions del Roy, 77 Eng. Rep. at 1343, reprinted in 1 THE SELECTED WRITINGS OF EDWARD COKE 481 (Steve Sheppard ed., 2003). See POCOCK, supra note [--], at; McConnell, Tradition and Constitutionalism, supra note 33. 41 Bracton, De Legibus et Consuetudinibus Angliae f. 5b. 42 Prohibitions del Roy, reprinted in 1 The Selected Writings of Edward Coke 481 n. 8 (Sheppard ed., 2003).

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the forced loan, and Charles ordered them imprisoned. The recalcitrant knights petitioned the King’s Bench for a writ of habeas corpus. The Attorney General, Sir Robert Heath, argued that the king had the prerogative power to preliminarily commit the accused by “special command” (with no estimated date for a specific charge of unlawfulness and trial).43 The crown hoped to evade a judicial ruling on the legality of the forced loan. The knights’ counsel argued that his clients were entitled under Chapter 29 of Magna Charta to a formal charge and to be released on bail. The Court declined to rule on the case and took it under advisement,44 an effective victory for Charles. Not long thereafter, the king found it necessary to summon a Parliament to raise money. Coke, who had been dismissed as Chief Justice and elected a member of the House of Commons, proposed a bill, called the Petition of Right, to reiterate and clarify that the Crown had no power to unilaterally incarcerate subjects. He maintained that any power the king might have to imprison a subject under martial law was subject to the authority of the common law courts to determine the legality of the act, under habeas corpus.45 The Secretary of the house, Sir John Coke, argued that the common law was only one of many authoritative bodies of laws of the realm, including ecclesiastical, equity, and martial law, which operated outside the reach of the common law, and that the king had the power to act under martial law without examination under the common law.46 Coke disagreed. He acknowledged “that the King’s prerogative is the supreme part of the laws of the realm,” but insisted that there was only one kind of law that included all others: “the laws of England.”47 Sir John Selden, England’s first legal historian and then a member of Parliament, took the position: “All the law you can name, that deserves the name of law, is reduced to these 2: it is either ascertained by custom or confirmed by act of parliament.”48 Parliament enacted the Petition of Right, thus endorsing Coke’s theory. English and American lawyers came to understand the Petition of Right as a foundational document in the English constitution alongside the Magna Charta. The Petition of Right asserted that subjects could be deprived of rights only according to “the law of the land,” “due process of law,” or “by the judgment of his peers.”49 Each of these phrases was a way of expressing a single institutional check on the king’s power to deprive persons of rights:

43 Jurrow, supra note [--] at 275. 44 Steve Sheppard, Introduction to Parliamentary Debates on the Petition of Right, in 3 Selected Writings of Sir Edward Coke 1225 (Sheppard ed., 2003). 45 See 2 Commons Debates, 1628, 362-63 (April 8), reprinted in 3 The Selected Writings of Sir Edward Coke 1251 (Sheppard ed., 2003) (“Two laws will never stand in England: if the courts be open, no martial law.”); 2 Commons Debates, 1628 545-46 (April 18), reprinted in 3 The Selected Writings of Sir Edward Coke 1262 (Sheppard ed., 2003) (“The question must be determined by the laws of England, and the martial law is bounded by it”); id. at 1263 (A rebel “may be slain in the rebellion, but after he is taken he cannot be put to death by the martial law. … When the courts are open martial law cannot be executed.”). 46 See POCOCK, supra note [--], at 293. 47 POCOCK, supra note [--], at 293-94. 48 POCOCK, supra note [--], at 295-96 (quoting III Commons Debates 1628, at 33 (Grosvenor Diary)). 49

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he could do so only with the authorization of Parliament or the ancient common law, and with the interposition of courts and juries. Neither Coke nor any of his contemporaries suggested that the law of the land or due process limited Parliament’s power to deprive subjects of rights. Scholars have argued that Coke held that the law of the land limited Parliament because he asserted that monopolies are “against the liberty, and freedome of the Subject . . . and consequently against this great Charter.”50 This misunderstands Coke’s position. He meant that the king could not unilaterally grant monopolies because by common law such monopolies could only be issued with Parliament’s consent.51 This was a separation of powers argument, not an argument that the Crown (to say nothing of Parliament) was limited by a “higher law.” Likewise, scholars have argued that Coke’s opinion in Bonham’s Case52 suggests that he believed that Parliament was limited by a “higher law.”53 The Court of Common Pleas held that the Royal College of Physicians in London could not imprison doctors that practiced without a license, even though, according to the College, two Acts of Parliament and the College charter gave it the authority to do so. In later commentary on the case, Coke asserted that had the College been given the power to collect and keep fines from non-members, it would have been authorized to act as a judge in a case in which it had a personal interest, against a core principle of the common law:54 “when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.”55 Scholars have long debated whether Coke was announcing a rule of statutory construction56 or defending the power of the common law courts to invalidate an act of

50 Case of the Tailors of Ipswich, (1614) 77 Eng. Rep. 1218, 1218-20 (K.B.), reprinted in 1 The Selected Writings of Edward Coke 390, 39193 (Steve Sheppard ed., 2003); see also Case of Monopolies, (1602) 77 Eng. Rep. 1260 (K.B.), reprinted in 1 The Selected Writings of Edward Coke 394, 395-96, 398-400 (Steve Sheppard ed., 2003); Coke, 2 Institute ch. 29, at 851. 51 See Williams, supra note [--] at 430-30. See generally Thomas B. Nachbar, Monopoly, Mercantilism, and the Politics of Regulation, 91 Va. L. Rev. 1313, 1333-36 (2005). 52 Dr. Bonham’s Case, (1610) 77 Eng. Rep. 638 (C.P.) 652. 53 Gedicks, supra note [--] , at 600, 602-11; Corwin, Higher Law, 42 Harv. L. Rev. 365, 370 (“’Common right and reason’ is, in short, something fundamental, something permanent; it is higher law.”); James Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism 58 (1992). 54 Id. (“The censors cannot be judges, ministers, and parties; judges to give sentence or judgment; ministers to make summons; and parties to have the moiety of the forfeiture”). See also Day v. Savadge, Hobart 85 (1614) (Hobart, C.J.) (“Even an Act of Parliament, made against Natural Equity, as to make a Man Judge in his own Cause, is void in itself; for jura natuare sunt immutabilia and they are leges legum.”)_ 55 Id. 56 1 Blackstone’s Commentaries 91 (“Where some collateral matter arises out of the general words, and happens to be unreasonable, there the judges are, in decency, to conclude that this consequence was not foreseen by the Parliament.”); R. H. Helmholz, Bonham’s Case, Judicial Review, and the Law of Nature, 1 J. LEGAL ANALYSIS 325, 327-28 (2009); HAMBURGER, supra note 22 at 622-30; Jeffrey Goldsworthy, The Sovereignty of Parliament 9-21 (1999); S.E. Thorne, Dr. Bonham’s Case, 54 L. Q. Rev. 543, 548-49 (1938); Charles M. Gray, Bonham’s Case Revisited, 116 Proc. Am. Phil. Soc’y 35 (1972) (an earlier manuscript based on Coke’s oral statements from the

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Parliament, proto-judicial review.57 Those who adopt the construction interpretation argue that Coke’s assertion that “the common law will controul [the Act]” means that courts should reject a possible interpretation of a statute that would fly in the face of the common law. Those who adopt the judicial review interpretation argue that “common right and reason” amounted to an endorsement of a law higher than ordinary legislation.58 We think that Coke here suggested nothing more than that courts should interpret acts of Parliament to conform with established principles of the common law. Coke expressly says that the form of higher law that would “controul” and “adjudge such Act” of Parliament is “the common law.” This was the law to which Parliament was bound as the highest court in the land.59 It was not a “higher law” or “natural law,” but the law of the land that all courts, including Parliament, had a duty to apply. The same year he decided Bonham’s Case, Coke declared in another case that natural law was universally valid— including in England—and he contrasted it with the law written for a particular community—such as England’s common law.60 Coke contrasted this natural law with the law of Moses, which, like the common law, was written for a particular community. “[C]ommon right,” especially used in connection with “the common law” as Coke did in Bonham’s case, most likely refers to the rights held by Englishmen under the law common to them, not rights universally held under natural law. “Reason” most likely refers to the “artificial reason” of the common law, not reason universally available under natural law. There is no question that Parliament could declare the law of the land in particular cases61 and could create and limit rights through statute and charter. And Parliament sometimes annulled its own acts for violating Magna Charta. In Bonham’s Case, Coke asserted nothing more than that Parliament should be presumed to have followed the established common law because it has a duty to do so. He does not specify whether that duty adheres because Parliament is a court or because Parliament is a legislature. The vast bulk of the evidence suggests that Coke believed that Parliament could expressly declare the law of the land as a court that was obligated in duty to the customary law of England62 bench strongly suggests that the holding was based on statutory interpretation); Theodore F.T. Plucknett, Bonham’s Case and Judicial Review, 40 Harv. L. Rev. 30 (1927). 57 William Treanor, Judicial Review Before Marbury, 58 STAN. L. REV. 455 (2005); Glenn Burgess, Absolute Monarchy and the Stuart Constitution 193 (1996); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843, 868 (1978); Charles Grove Haines, The American Doctrine of Judicial Supremacy 51-53, 72 (1914). These disputes are not new. See R. A. MacKay, Coke—Parliamentary Sovereignty or the Supremacy of the Law?, 22 Mich. L. Rev. 215 (1923). 58 Edward Corwin conflated these two interpretations. Corwin, Higher Law, 42 Harv. L. Rev. 365, 373 (“At the very least, therefore, we can assert that in Bonham’s Case coke deemed himself to be enforcing a rule of construction of statute of higher intrinsic validity that any act of Parliament as such.”). 59 See McIlwain, supra note [--], at 148. 60 Calvin’s Case, 7 Co. at 12a-12b (natural law is that “which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is Lex aeterna, the moral law, called also the law of nature”) 61 See, e.g., 4 Coke, Institutes 36. 62 For a another Stuart-era argument that Parliament was effectively bound by “the wisdom of time and experience” embodied in the common law, see Thomas Hedley’s speech to the House of Commons in 1610, in POCOCK, supra note Error! Bookmark not defined.

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and could alter the law of the land as a legislature that represented England’s three estates: king, nobility, and people.63 And, as Larry Kramer has demonstrated, the best evidence suggests that American colonists interpreted Coke’s opinion in Bonham’s Case to hold that courts should construe vague statutes to comply with the common law, not that direct courts should invalidate an act of Parliament on the basis of higher law.64 In sum, Coke’s arguments that the Crown was bound by law were in one sense separation of power arguments; the king was separated from the body that possessed the authority to declare the law—Parliament—and the body that possessed the authority to decide cases under that law—the common law courts (including the king-in-parliament). Neither Coke nor his contemporaries suggested that the law of the land or due process limited Parliament’s power to deprive subjects of rights.

B. Pre-Revolutionary English Disputes About Parliament’s Power Parliament emerged from the civil wars of the seventeenth century undoubtedly supreme.65 Over the course of the century, it became a real legislature, and the common law became a set of default rules rather than the bedrock of legality.66 Meanwhile, Parliament retained its traditional role as the supreme common law court.67 In the last third of the eighteenth century, some members of Parliament argued that was bound by “the law of the land” to not deprive specific parties of rights without due process. This was a minority position in Parliament, but it became more common among whiggish lawyers in British America, foreshadowing the application of due process to legislative acts that deprive particular persons of rights. 1. The Expulsion and Disqualification of John Wilkes In a notorious episode in 1769, the House of Commons twice expelled and then disqualified a member elected by the constituency of Middlesex (essentially London), named John Wilkes, on account of his having published material deemed to be seditious

270-72 (Parliament “hath his power and authority from the common law, and not the common law from Parliament,” and that the one that may “try reason, and is the essential form of the common law” is not “the judges of the law” nor “the wisdom of of the whole realm, the king his nobilities, clergy, and commons” but “time”). 63 See, e.g., Sir Thomas Smith, Commonwealth of England, bk ii, c. 1 (“The most high and absolute power of the realme of Englande, consisteth in Parliament … That which is done by this consent is called firme, stable, and sanctum, and is taken for lawe. The Parliament abrogateth olde lawes, maketh newe . . . . and hath the power of the whole realme, both the head and the body. For everie Englishman is entended to bee there present, either in person or by procuration and attornies.”). 64 Larry Kramer, The People Themselves 18-22 (2004). 65 See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 26 (2d ed. 1998). 66 DAVID LIEBERMAN, THE PROVINCE OF LEGISLATION DETERMINED: LEGAL THEORY IN EIGHTEENTH CENTURY BRITAIN (2002). 67 The classic study of Parliament’s power as a court is CHARLES HOWARD MCILWAIN, THE HIGH COURT OF PARLIAMENT AND ITS SUPREMACY: AN HISTORICAL ESSAY ON THE BOUNDARIES BETWEEN LEGISLATION AND ADJUDICATION IN ENGLAND (1910).

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libel and pornography.68 These acts raised a constitutional question of first impression: did a House of Parliament have to abide by established rules of procedure when it exercised the quasi-judicial power to discipline one of its own members? No one doubted that Parliament as a whole had the power to punish individuals by means of statutes, such as bills of attainder, bills of pains and penalties, and ex-post facto laws. But could one House, acting alone, deprive a member—and perhaps his electors—of their rights on the basis of a prior conviction without according the accused the basic procedural protections required by the common law? This question split the members of both Houses across the usual grain of political loyalties. Wilkes’s defenders in Parliament, interestingly including some of his political opponents, opposed his expulsion on constitutional grounds. They argued that when the Commons exercised its power to discipline a member it had to follow established procedural rules. As George Grenville explained, ginning up new rules to suit the case at hand violated the law of the land: We are now acting in our judicial capacity, and are therefore to found the judgment which we are to give, not upon our wishes and inclinations; not upon our private belief or arbitrary opinions, but upon specific facts alleged and proved according to the established rules and course of our proceedings. When we act as judges, we are not to assume the characters of legislators, any more than the Court of King’s-bench, who were bound to reverse Mr. Wilkes’s outlawry if they found any irregularity in it, though possibly they were convinced in their private opinions, that it would have been more beneficial to the state to have confirmed it.69 Contrary “to the usage and law of parliament, to the practice of any other court of justice in the kingdom, [and] to the unalterable principles of natural equity,” the motion to expel Wilkes did not specify the charges against him.70 68 See Proceedings in the Lords on Mr. Wilkes’s Appeal upon a Writ of Error (Dec. 21, 1768), in 16 COBBETT’S PARLIAMENTARY HISTORY 511-18 (1805); Proceedings in the Commons Relating to the Expulsion of Mr. Wilkes (Feb. 3, 1769), in 16 COBBETT’S 545. As a publisher and political figure Wilkes had a long career of conflict with the powers that be. See generally Arthur H. Cash, John Wilkes (2006). The case of Wilkes v. Wood ended general warrants. See Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1176-77 (1990). Although the House of Commons expelled Wilkes and disqualified him from office, a later Parlaiment expunged that disqualification. The affair thus established the right of voters to the representation of the person they elected. Josh Chafetz, Democracy’s Privileged Few 155-58. 69 16 COBBETT’S, supra note [--] at 561 (Glenville). 70 16 COBBETT’S, supra note [--] at 550-51. According to Grenville, “not above two gentlemen, who have not spoken together, have agreed in assigning the same offence as the proper ground for this expulsion,” and “the opinions of those who concur in this question of expulsion, are almost equally divided among the several branches of the charge contained in it.” There was a risk, therefore, that a majority would expel Wilkes on the basis of some charge, even though there might not be a majority that would expel him on any one of the charges standing alone. This was the very reason that juries must vote on separate charges in criminal cases.70 In addition, insofar as the motion was based on the seditious libel conviction, it smacked of double jeopardy because the House had already expelled Wilkes when he was charged with that crime.

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These arguments failed. The House expelled Wilkes. His constituents, indignant that their choice of representative was overruled, reelected him. He was expelled again, and reelected again, and then the House voted to permanently disqualify him from membership. Disqualification only intensified Grenville’s point. When houses of parliament act as “courts of judicature,” they “only have the power of declaring” existing “restraints,” and “in the use of that [judicial] power are bound by the law as it stands at the time of making that declaration.”71 Otherwise, a “resolution of the House” could become “the law of the land by virtue of its own authority only.” Instead, the opposition contended that the House, when acting as a court of judicature, was bound by the law of the land as embodied by “like restraints adjudged in other cases by all the courts of law; and confirmed by usage.”72 Mr. Downley argued that “Mr. Wilkes’s disqualification was supported by no custom, nor by any statute; deriving its authority from a resolution of the House of Commons only, and that resolution taken extrajudicially, without hearing the parties.”73 Forty-seven members of the House of Lords protested the Commons’ disqualification of Wilkes, “in defense of the law of the land”: [W]e conceive ourselves called upon to give that proposition the strongest negative; for, if admitted, the law of the land (by which all courts of judicature, without exception, are equally bound to proceed) is at once overturned and resolved into the will and pleasure of a majority of one House of Parliament, who, in assuming it, assume a power to over-rule at

71 16 COBBETT’S, supra note [--] at 589-90. These constitutional arguments were unsurprisingly mixed with arguments that might today be considered to touch matters of political expediency. “That the House of Commons has the right, incidental to its judicature, of declaring what incapacities are legal. But it behoves the House to take care, that, in stead of exercising the powers which it has, it assume not those which it has not; that from the temperate and judicious use of a legal power, it swell not to the utmost pitch of extravagance and despotism, and make the law, under pretence of declaring it.” 591. That a proper interpretation of the constitutional doctrine of the separation of powers was a crucial element of the question was further demonstrated by the arguments of those in favor of disqualification. They urged that the House of Commons is the sole court of judicature in all cases of election. That this authority is derived from the first principles of our government; viz. the necessary independence of the three branches of the legislature. Did any other body of men possess this power, members might be obtruded upon the House, and their resolutions might be influenced under colour of determining elections. They have therefore an exclusive jurisdiction, and must be in all these cases the dernier resort of justice. That the House in the present case is the competent judge of disability, and that their decision on it is final; that if in this, or any other instance, its decisions were found to be attended with prejudice, the united branches of the legislature in their supreme and collective capacity, might interpose, and by passing a law regulate such decisions for the future; but that nothing less could restrict their authority.” 16 COBBETT’S, supra note [--] at 594. 72 These constitutional arguments were unsurprisingly mixed with arguments that might today be considered to touch matters of political expediency. “That the House of Commons has the right, incidental to its judicature, of declaring what incapacities are legal. But it behoves the House to take care, that, in stead of exercising the powers which it has, it assume not those which it has not; that from the temperate and judicious use of a legal power, it swell not to the utmost pitch of extravagance and despotism, and make the law, under pretence of declaring it.” 591. 73 JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: LEGISLATION 25 (2003).

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pleasure the fundamental right of election, which the constitution has placed in other hands, those of their constituents.74 The Wilkes expulsion and disqualification put a fine point on whether—and in what capacity—the houses of parliament were bound by the law of the land. Even the opponents of expulsion admitted that the king-in-Parliament had the power to deprive persons of liberty through forms that were unknown to the common law courts, such as bills of attainder and ex post facto laws. Their assertion was that courts, including a house of parliament when it was exercising its sole judicial power, were obligated to follow the law of the land – meaning the typical common law procedures – when depriving a person of rights. Sir William Blackstone’s position won the day, in the Wilkes affair and as to Parliamentary sovereignty more generally. As he explained to the Commons, “there is no appeal from its competence to the law of the land. There are cases in which the other House is competent: if the House of Lords ... should determine contrary to the law of the land, what is the remedy?”75 His point was that there was no external force, no institution, vested with authority to stop a house of parliament from doing what it liked. As Gordon Wood has noted, “by the last quarter of the eighteenth century it seemed clearer than ever before to most Englishmen that all [] moral and natural law limitations on the Parliament were strictly theoretical, without legal meaning, and relevant only in so far as they impinged on the minds of the lawmakers.”76 This would have been even clearer to Englishmen after Parliament unilaterally altered the charter of the East India Company. 2. The East India Bill of Restraint of 1772 In the early 1770s, the East India Company was in a state of crisis. Poor financial decisions by the directors at London House, abuses of the local population in Bengal by company agents, a recession in Europe, and an American tea boycott led to an intervention by the government in the form of the Restraining Bill of 1772.77 It was 74 Reid, Legislation, supra note [--] at 25-26 (quoting Protest of the Lords, 31 January 1770, Parliamentary History 16;821). In 1774, after his disqualification had ended with its parliament, the county of Middlesex again elected Wilkes to the House. ARTHUR H. CASH, JOHN WILKES: THE SCANDALOUS FATHER OF CIVIL LIBERTY 308 (2006). This time he was seated. Each year thereafter he petitioned the House to expunge the records of his expulsion and disqualification from the journal. In 1782 it did so, “as being subversive of the rights of the whole body of electors of this kingdom.” The whole affair has been recognized as “a tipping point” in favor of the peoples’ right to be represented by those they have elected. CHAFFETZ, supra note [--] at 155-58. See also Powell et al. .v. McCormick, 395 U.S. 486, 527 (1969)

75 REID, LEGISLATION, supra note [--] at 25 (quoting Speech of Sir William Blackstone, Commons Debates, 31 January 1770, Parliamentary History 16:802)). This argument, which prevailed in the Commons, was interpreted by the Duke of Grafton as nothing less than a claim by the Commons to “an exclusive jurisdiction without appeal in all matters of election.” 76 WOOD, supra note [--] at 260. 77 H.V. BOWEN, REVENUE AND REFORM: THE INDIAN PROBLEM IN BRITISH POLITICS 1757-1773, at 131 (1991). All agreed that the Company had at least tried to resolve the Indian abuses; it sent new supervisors to restore order to its Bengal agents, but the ship was lost at sea.

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Parliament’s means that raised constitutional eyebrows from some members of the opposition.78 Over the Company’s strong dissent and a handful of Whig opposition members—including Sir Edmund Burke, who only one year later would become a chief supporter of Fox’s East India Bill against the Company—Parliament enacted a bill to prohibit the Company from “sending out Supervisors to India for six calendar months.”79 The purpose of the bill was to save the Company money and limit its control over the local population. The Company argued that it would actually cost it more not to appoint new commissioners to bring order to the Company’s affairs in Bengal, and it would have “dangerous consequences” “to the credit of the Company.”80 It maintained that the bill was “subversive of those rights which they hold under their charter, the original privileges of which, and the continuation thereof, have been purchased by their predecessors from the public for a valuable consideration, and repeatedly confirmed by several acts of parliament.”81 Interestingly, the Company and opponents of the bill in Parliament argued not only that the bill was a violation of the Company’s charter, but that the revision of the charter would violate the law of the land by punishing the Company without due process of law.82 The Bill “did not state any delinquency in the Company, though it invaded their chartered rights.” (Even Lord North, who was no a political ally of the company and its backers, acknowledged, perhaps diplomatically, that the measure “was not an act of blame, of censure, of punishment, merely an act of prevention.”).83 The Company’s counsel argued that “the principle and object of the Bill were unconstitutional” and that “no man could deny that the Bill was not an extraordinary stretch of parliamentary authority, excusable only by the most urgent necessity.”84 Indeed, it was “the happiness of this country to be governed by fixed and known laws, not by ex post facto acts passed upon the spur of a particular occasion.” Counsel, maintaining that the bill would result in financial loss, contended that “were the Company accused of delinquency, and upon that ground threatened with a deprivation of rights, yet some compensation ought to be made,” “a maxim held sacred in former parliaments.”85 In short, “though supreme in every instance in which the public good was concerned, [they] were nevertheless bound by the permanent and well established rules of equity and legislation,” and Parliament had “no 78 See, e.g., Mr. Burke’s Speech on Fox’s East India Bill (Dec. 1, 1783). 79 Debates in the Commons on the Bill to Restrain the East India Company from Appointing Supervisors in India, in 17 COBBETT’S PARLIAMENTARY HISTORY 651. 80 17 Cobbett’s, supra note [--] at 647 (Dec. 14) (Mr. Sulivan, presenting a Petition from the East India Company). 81 Debates in the Commons on the Bill to Restrain the East India Company from Appointing Supervisors in India, in 17 COBBETT’S PARLIAMENTARY HISTORY 646 (Dec. 14) (Mr. Sulivan, presenting a Petition from the East India Company). 82 JOHN PHILLIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: LAW 31 (2003) (“The constitutional theory was that the government, by granting a charter, vested in a company, colony, or individuals certain inviolable privileges and securities of property that, if not immutable, were answerable only at common law, not to legislative whim and caprice.”). 83 BOWEN, supra note [--] at 149. 84 Debates in the Commons on the Bill to Restrain the East India Company from Appointing Supervisors in India, in 17 COBBETT’S PARLIAMENTARY HISTORY 652 (Dec. 18) (argument of Messrs. Impey and Adair, counsel for East India Company). 85 17 COBBETT’S, supra note [--] at 651.

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right to restrain” the affairs of the Company that were within the terms of the Charter.86 Indeed, counsel contended that parliament had no more power to violate “fundamental maxims of the constitution” than the Crown.87 These argument were apparently not mere rhetoric; members of the opposition, including Lord Rockingham, Sir Edmund Burke, and William Dowdeswell likewise thought the measure a violation of the customary constitutional protections of property against arbitrary deprivation: because the Bill takes away from a great body corporate, and from several free subjects of this realm, the exercise of a legal franchise, without any legal cause of forfeiture assigned. ... No abuse has been suggested, no delinquency has been charged. These legal rights and capacities are therefore taken away by a mere act of arbitrary power, the precedent of which leaves no sort of security to the subject for his liberties; since his exercising them in the strictest conformity to all the rules of law, as well as to those of general equity and moral conduct, is not sufficient to prevent parliament from interposing its sovereign powers to divest him of these rights, by means of which insecurity the honourable distinction between the British and other forms of government is in a great measure lost; a misfortune which we are sorry to find greatly growing upon us by those temporary occasional and partial acts of parliament, which, without any consideration of their conformity to the general principles of our law and constitution, are adopted rashly and hastily on every petty occasion.88 Further, the dissenting Lords argued, “we admit that it is difficult to fix any legal limit to the extent of legislative power: but we apprehend that parliament is as much bound, as any individual, to the observance of its own compacts; else it is impossible to understand what public faith means, or how public credit can subsist.”89 When parliament exercises the power of revising “its own compacts” without “cause of forfeiture assigned” or “delinquency charged,” it “divest[s]” a subject of “liberty” and “rights” by a “mere act of arbitrary power.” Not only was it without precedent, but it was against a sort of precedent in the form of Parliament’s “own compacts.” Furthermore, the Bill was “temporary[,] occasional[,] and partial” because it singled out one party for special penalties. The specific change proposed by the Commons—a temporary suspension of the Company’s right to appoint new supervisors in India—may have been relatively minor, but it threatened to set a precedent that Parliament could unilaterally make more dramatic changes. The opponents of the act did not expressly denounce the suspension of the Company’s charter rights as a misuse of quasi-judicial power by the legislative branch. 86 Id. 87 COBBETT’S, supra note [--] at 652. 88 17 COBBETT’S 682-83 (emphasis added) (speaker). 89 17 COBBETT’S 683 (Dec 23, 1772).

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Still, their arguments sounded in due process concerns. The revision was a deprivation of the Corporation’s settled rights. It was not based on specific allegations of wrongdoing or a violation of the charter, and the Company could have had no legal notice of the revision. Nor was there a precedent for such a deprivation. Some members of the opposition would soon change their mind about the nature of the East India Company, concluding that it should be regulated as an imperial agent of the Crown. But their arguments, and those made against the expulsion and disqualification of Wilkes, would soon echo in arguments made by American colonists against the Intolerable Acts. State legislatures and courts in the early republic would use the same logic to argue that an act of a state legislature that deprives a person of rights without adequate procedure could violate the law of the land. It remained for the formal separation of powers to make it clear that any exercise of the legislative power to deprive a specific person or persons of established rights was per se a violation of due process. This limit on legislative power was not a limit on the legislature’s power to legislate, to adopt general and prospective laws, but a limit on the legislature’s power to effectively act like a court. C. Revolutionary Arguments that Parliament Violated the Law of the Land As John Philip Reid and others have stressed, the American arguments made against British policies in the years preceding the Revolution were legal, indeed constitutional, in nature. Fundamentally, the patriots complained that various Acts of Parliament violated fundamental rights – such as the right of trial by jury and the right against taxation without representation – that pertained to all Englishmen and were specifically guaranteed to the colonists by means of colonial charters . These preRevolutionary argument thus formed an important bridge between the Whiggish arguments of the Stuart period, which sought to bring royal power into subordination to law, and the Whiggish arguments of the American revolutionaries, which applied similar logic to Parliament. By the end of the revolutionary period, Americans no longer accepted the Blackstonian view of parliamentary supremacy, at least as it applied in colonies not represented at Westminster. It became natural to assume that law limits legislatures, as well as executive officers. The pre-Revolutionary American writers took aim at two distinct kinds of parliamentary acts, both having to do with how parliamentary deprivations of common law procedural safeguards. First, colonial writers argued that Parliament violated the law of the land when it passed acts that restricted the common law procedural protections to which colonists were entitled in court. Americans insisted that they were entitled to all the rights and privileges of Englishmen, which included these protections. Parliament, they contended, could not pass special legislation abrogating common law procedures for the colonies while maintaining those procedures for other Englishmen. Second, Americans maintained that parliament violated the law of the land by depriving entities – often colonies—of property or charter rights through what were effectively exercises of

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quasi-judicial power,90 without providing common law procedures designed to limit arbitrariness.91 The most frequent and intense charge raised by colonials that parliament had violated the law of the land centered around a series of parliamentary acts that abridged common law procedures in the trial of colonial defendants, usually by removing certain cases from common law courts to admiralty courts (where there was no jury), or otherwise limiting the right to jury trial. The Stamp Act authorized trial of violations by vice-admiralty courts, which operated under admiralty law, not common law, procedures.92 The Dockyards Act deprived colonists of the right to trial by local jurors by removing prosecutions for certain crimes to England.93 Both statutes were motivated by the fact that local juries in America routinely refused to convict patriots for acts of rebellion or for refusal to pay taxes popularly regarded as illegitimate. The right of trial by a jury “of the vicinage” thus rendered imperial laws virtually unenforceable. Local juries would not enforce imperial taxes or punish rebels because colonials did not want to set a precedent of acceptance that could be construed as consent. Parliament was faced with a choice: either abrogate common law procedural protections for Bostonians or accept that imperial writ did not run in Massachusetts.94 From a colonial point of view, and even that of British observers like Edmund Burke, these attempts by parliament to remove certain kinds of cases from the jurisdiction of local juries to the jurisdiction of vice-admiralty courts, which did not proceed according to the common law, or to remove certain defendants for trial in Britain, were illegal and unconstitutional. These controversies raise a different question of application of due process to the legislative branch than we have yet encountered: Does an Act of Parliament that purports to abrogate the procedural protections of customary law violate due process? Or is such an Act by definition the “law of the land” and hence constitutionally unobjectionable? Today we would regard this question as one of “procedural” due process, and answer that the legislature may

90 When we use the term “quasi-judicial,” we do not mean “almost judicial”; we mean that an essentially judicial function was performed by a branch other than the judiciary. 91 See James Otis’s arguments in Paxton’s Case. Geddicks, supra note Error! Bookmark not defined. at 616, citing Paxton’s Case of the Writ of Assistance (Mass. Bay Super. Prov. Ct. 1761, reported in 1 Josiah Quincy, Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay Betwen 1761 and 1772, at 51-57, app. I-A, at 385-405 (Boston, Little, Brown, & Co. 1865). Otis cites Coke in Bonham’s Case and in the Second Institutes. Otis’s argument was very influential. 92 Reid, Rights 179. 93 Cite 94 See Reid, Law 13 (“It is enough to note that with whigs in control of the grand juries no one could be indicted for violating Parliament’s statutes of supremacy; with whigs in control of the petit juries British official were fearful of either civil damages or criminal conviction if they enforced laws the whigs believed were unconstitutional; with whigs dominant in the lists of justices of the peace no riot was ever proclaimed when the people took to the streets to avoid enforcement of imperial taxation; with whigs in control of the executive council the royal governor could not obtain the advice and consent constitutionally required before he could order the assistance of British troops; and, with the whigs a clear majority of the voting population, resolutions of town meetings could give color of law to riots and legitimacy to crowds that used intimidation and threatened violence against crown officials enforcing imperial edicts.”).

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modify established procedures only if the new procedures pass basic tests of fairness and reliability. 95 Although at the time dissenters described such acts of parliament as being inconsistent with or violating the law of the land, as an analytical matter, when parliament abridged common law procedural rights it did not directly deprive subjects of life, liberty, or property. Rather, it authorized such a deprivation by the executive and the courts. Parliament was, in modern parlance, delegating violations of due process of law or the law of the land. American objections to such statutes thus went beyond the Cokean and Blackstonian foundation of due process. It became possible to think of statutes as violating due process or other constitutional norms, even when enacted in the ordinary way by the legislative branch. American outrage was raised to the boiling point by enactment of the Coercive Acts (called the “Intolerable Acts” by Americans), which asserted parliamentary sovereignty over the colonies and punished Massachusetts for the Boston Tea Party.96 The Massachusetts Government Act restructured the colony’s charter give the Crown more direct and effective control; in particular, it replaced Massachussett’s elected colonial legislature with a council appointed by the crown. The Boston Port Act closed Boston Harbor to all civilian traffic “until it shall sufficiently appear to his Majesty that full satisfaction has been made [for the tea] by or on behalf of the inhabitants of the said town of Boston” to the East India Company.97 Its advocate, Lord North, did not mince words: the Act was to “punish Boston, compensate the East India Company, protect the customs officers, prevent smuggling, and preserve British trade.”98 American Whigs saw the statutes as steps down a slippery slope that would lead to arbitrary rule by a parliament that had abandoned all legal restraints.99 Creative lawyers, and there were many of them among the Americans, characterized the acts as deprivations of rights without adequate forms of judicial procedure—usually a notice, hearing, and even a trial by peers. These arguments set the stage for later arguments that legislative acts depriving certain persons of liberty or property violated due process. The Boston Port Act could be seen as legislative usurpation of the essentially judicial function of resolving a legal dispute between two parties--in this case, the East India Company and the perpetrators of the Tea Party, not dissimilar to King James’s attempt to decide questions of court jurisdiction by royal command. The statute was effectively a judgment against the people of Boston and it delegated the task of determining whether the town had made “full satisfaction” for the cost of the destroyed tea to “his Majesty.” Thus, liability was determined by Parliament and damages by the executive, in which should have been handled (according to the Americans) as a tort suit, with liability and damages determined by a jury. The First Continental Congress put it this way: “Even supposing a trespass was thereby committed, and the Proprietors of the 95 See, e.g., Murray’s Lessee v. Hobeken Land & Improvement Co., 59 U.S. 272 (1855); Hurtado v. California, 110 U.S. 516 (1884). 96 Lord North, Reid, xx; see also letter of Earl of Dartmouth to Joseph Reed, quoted in Reid, Law 41-42. 97 Reid, Law 9. 98 Reid, Law 10. 99 Reid, Law 29-37.

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tea entitled to damages.--The Courts of Law were open, and Judges appointed by the Crown presided in them--The East India Company however did not think proper to commence any suits, nor did they even demand satisfaction, either from individuals or from the community in general. The Ministry, it seems, officiously made the case their own, and the great Council of the nation descended to intermeddle with a dispute about private property.” Parliament’s actions drew sharp criticism not only from Massachusetts, but up and down the North American seaboard, inspiring novel and significant legal arguments.100 Some were based on the American interpretation of the imperial constitution, under which governing authority over domestic affairs and taxation was vested in each colonial legislature, under the King, rather than in Parliament. The Virginia House of Burgesses, for instance, argued that only a colonial legislature had the authority to deprive colonial ports of property. Most significant for our purposes were arguments based on some version of due process. Virginia’s instructions to its delegation to the First Continental Congress, drafted by Thomas Jefferson and later published as A Summary View of the Rights of British America, made the case plain: without calling for a party accused, without asking for proof, without attempting a distinction between the guilty and the innocent, the whole of that antient and wealthy town is in a moment reduced from opulence to beggary. Men who had spent their lives in extending the British commerce, who had invested in that place the wealth their honest endeavors had merited, found themselves and their families thrown at once on the world for subsistence by its charities. Not the hundredth part of the inhabitants of that town had been concerned in the act complained of; many of them were in Great Britain and in other parts beyond sea; yet all were involved in one indiscriminate ruin, by a new executive power, unheard of till then, that of a British parliament. A property, of the value of many millions of money, was sacrificed to revenge, not repay, the loss of a few thousands. This is administering justice with a heavy hand indeed! and when is this tempest to be arrested in its course? Two wharfs are to be opened again when his majesty shall think proper. ... This little exception seems to have been thrown in for no other purpose than that of setting a precedent for investing his majesty with legislative powers.101 Jefferson’s argument rewards attention. In his lawyerly way, he first identifies procedural defects. There were no charges of “a party accused,” no evidence, and no judgment. He then identifies inequities in the remedies provided for the harm: it punished innocent bystanders; was far out of proportion to the harm; and had no limit but the king’s whim.

100 Reid, Law 11 (“It was the continental reaction that caused the greatest surprise in London”). 101 Jefferson, Summary View of the Rights of British America, in Writings (Library of America).

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To make matters worse, parliament adopted the Massachusetts Acts, which changed the terms of the Massachusetts Charter.102 Among other things, the Massachusetts Government Act gave the Governor, appointed by the Crown, the power to call for military help in case of a riot, to appoint the Massachusetts Council (which had been the only elected colonial legislature),103 and to appoint most judges (except those appointed directly by royal ministers in London). It gave sheriffs, appointed by the governor, the authority to appoint grand and petit juries.104 This aroused all the constitutional quibbles raised by the change in the East India Company charter, but this was worse: colonials thought the Massachusetts Charter was a binding contract. They had traveled to the wilderness and formed a British society there in reliance on the assurance that they would be accorded the rights of self-government listed in the charter. The first continental congress assailed the Act as a deprivation of the rights of Massachusetts against the law of the land: “Without incurring or being charged with a forfeiture of their rights, without being heard, without being tried, without law, and without justice, by an Act of Parliament, their charter is destroyed, their liberties violated, their constitution and form of government changed.”105 As Prof. Reid notes, “By eighteenth-century legal premises, if the Boston Port Act and the three Massachusetts Acts were both legal and constitutional, Americans not only were deprived of the right of security, but also could lose another basic right on which the rights of property, liberty, and life depended, the right to government.”106 The Coercive Acts prompted the First Continental Congress to send a letter of constitutional assertions and grievances to the British.107 They included: ... the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.”108 .... ... we claim all the benefits secured to the subject by the English constitution, and particularly that inestimable one of trial by jury. 102 In addition, parliament adopted the Administration of Justice Act, which temporarily allowed British officers alleged to have violated the law in Massachusetts to be tried in Britain, and the Quartering Act, which provided for the quartering of British troops in colonial barns and other uninhabited buildings. See generally Reid, Law 17-23. 103 See Wood, The Creation of the American Republic 212. 104 Reid, Law 16. 105 87. 106 Reid, Law 40. 107 The Quebec Act accomplished the following: “(1) extension of Quebec’s boundaries over western Canada and the region of the Ohio River, including backcountry conquered from France and claimed by New York, Pennsylvania, and Virginia; (2) reinstatement of French civil law; (3) exclusion of juries in noncriminal cases; (4) denial of habeas corpus; (5) toleration of Roman Catholicism, perhaps even ‘establishing’ it by sanctioning traditional privileges of the clergy, including tithes; and (6) the creation of arbitrary government.” Reid, Law 23. See also Sullivan’s Draught Resolves and Declarations, Oct. 14, 1774, in Journals of Continental Congress, 1774-1787, at 67; WOOD, supra note [--] at 268-70. 108 Sullivan’s Draught Resolves and Declarations, Oct. 14, 1774, in Journals of Continental Congress, 1774-1787, at 69.

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... we hold it essential to English Liberty, that no man be condemned unheard, or punished for supposed offences, without having an opportunity of making his defence.109 ... Parliament assert, that they have a right to bind us in all cases without exception, whether we consent or not; that they may take and use our property when and in what manner they please; that we are pensioners on their bounty for all that we possess, and can hold it no longer than they vouchsafe to permit. Such declarations we consider as heresies in English polities, and which can no more operate to deprive us of our property, than the interdicts of the Pope can divest Kings of scepters which the laws of the land and the voice of the people have placed in their hands.110 .... To enforce this unconstitutional and unjust scheme of taxation, every fence that the wisdom of our British ancestors had carefully erected against arbitrary power, has been violently thrown down in America, and the inestimable right of trial by jury taken away in cases that touch both life and property.111 And in words that closely resemble Jefferson’s complaint about the Coercive Acts: [our history lacks a] a single instance of men being condemned to suffer for imputed crimes, unheard, unquestioned, and without even the specious formality of a trial; and that too by laws made expres[s]ly for the purpose, and which had no existence at the time of the fact committed. If it be difficult to reconcile these proceedings to the genius and temper of your laws and constitution, the task will become more arduous when we call upon our ministerial enemies to justify, not only condemning men untried and by hearsay, but involving the innocent in one common punishment with the guilty, and for the act of thirty or forty, to bring poverty, distress and calamity on thirty thousand souls, and those not your enemies, but your friends, brethren, and fellow subjects.112

109 Id. 83. 110 Id. 83. 111 85. (“--It was ordained, that whenever offences should be committed in the colonies against particular Acts imposing various duties and restrictions upon trade, the prosecutor might bring his action for the penalties in the Courts of Admiralty; by which means the subject lost the advantage of being tried by an honest uninfluenced jury of the vicinage, and was subjected to the sad necessity of being judged by a single man, a creature of the Crown, and according to the course of a law which exempts the prosecutor from the trouble of proving his accusation, and obliges the defendant either to evince his innocence or to suffer. To give this new judicatory the greater importance, and as, if with design to protect false accusers, it is further provided, that the Judge's certificate of there having been probable causes of seizure and prosecution, shall protect the prosecutor from actions at common law for recovery of damages.”). 112 86-87. According to the first Continental Congress, the Boston Port Act reduced Boston “to the necessity of gaining subsistence from charity, till they should submit to become slaves, by confessing the omnipotence of Parliament, and acquiescing in whatever

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Even some prominent British figures agreed with the general thrust of these complaints. Three years later, in the ashes of the Revolutionary War, William Pitt, the Earl of Chatham, chided the House of Lords that “[t]hree millions of people refused to be bound by your arbitrary edicts,” and agreed with the American claims that parliament violated the law of the land, both by directly depriving them of rights without due process, and by abrogating their right to a trial by jury: You condemned a whole province without hearing, without even demanding satisfaction for the injury sustained. . . . [Y]our deprived them, my Lords, of their most valuable privileges of the unalienable birth right of an Englishman, the trial by Jury; the trial of the vicinage, of Judges acquainted with the parts, the offence the provocation, and the measure of punishment.113 D.

Early State Experiments with Legislative Supremacy

Judicial review under the British Constitution was confined to acts of corporate or executive bodies, and did not extend to Parliament itself, which not only embodied the national sovereignty in its three elements, king, nobility, and commons, but also constituted the highest court in the land. From a colonial point of view, however, some form of judicial review of legislation was a common occurrence.114 The Board of Trade routinely reviewed the acts of colonial legislatures for consistency with acts of parliament, or the law of the land—“the land” being England.115 After Independence, it was hard to know which analogy would apply: were state legislatures like colonial legislatures, their acts subject to review under a higher source of law, or were they like Parliament, the embodiment of sovereignty?116 In practice, however, concerns about abuse of power overwhelmed any theoretical niceties about legislative power and sovereignty. After an early flirtation with legislative supremacy, most states adopted constitutions separating and defining legislative, executive, and judicial power, and incorporating a bill of rights. “Law of the land” clauses were a prominent feature of this new constitutional landscape. most states adopted constitutional provisions that deprived the legislature of quasi-

disposition they [the ministry] might think proper to make of their lives and property.” Reid, Law 12 (quoting Address from the Continental Congress to the People of Great Britain, 21 October 1774, Journals of the Continental Congress 1:86). 113 Reid, Law 32-33 (quoting Lord Chatham, Speech in the House of Lords on Friday the 20th of May 1777 (one-page broadside, Huntington Library Rare Book #87304). 114 Hamburger. 115 MARY SARAH BILDER, THE TRANSANTLATIC CONSTITUTION: COLONIAL LEGAL CULTURE AND THE EMPIRE (2008); Alison Gilbert Olson, Parliament, Empire, and Parliamentary Law, 1776, in THREE BRITISH REVOLUTIONS: 1641, 1688, 1776, 289 (Pocock ed., 1981). 116 We do not question that many believed sovereignty resided in “the People.” But the implications of that idea came slowly and are not necessarily inconsistent with some notions of sovereignty in government, such as the sovereign immunity of the United States in court.

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judicial power, such as the power to enact bills of attainder, ex post facto laws, and laws impairing the obligation of contracts. 1. Experiments with Legislative Sovereignty In the decade after the end of the Revolutionary war, most states adopted a written constitution which distributed powers to some extent, and many of them included a bill of rights. All but two of these (New Jersey and Georgia) adopted law of the land provisions. Four state constitutions--those of New York, Delaware, Maryland, and New Jersey--expressly incorporated the English common law, along with those statutes of parliament that had been applied by colonial courts.117 Additionally, though neither Connecticut nor Rhode Island adopted an express constitution, both states retained their charters, and thus maintained property rights by the standards of the common law.118 One of the major questions of the decade was the constitutionality of various state statutes that were thought to impair property rights or to violate new norms of separation of powers, such as laws abolishing primogeniture, seizing the property of Tories, allowing the payment of debts in depreciated paper currency, or limiting the rights of slaveowners.119120 State legislatures also frequently enacted “special legislation” that affected one or only a few parties. According to Roscoe Pound, state legislatures did not hesitate to enact statutes reversing judgments of the courts in particular cases. They sought to probate wills rejected by the courts. ... By special laws they directed the details of local government for particular instances. They validated particular invalid marriages. They suspended the statute of limitations for a particular litigant in a particular case. They exempted a particular wrongdoer from liability for a particular wrong for which his neighbors would be held by the general law.121 Prof. Wallace Mendelson commented that “[s]uch measures of special rather than general, and retrospective rather than prospective, application smack of the judicial decree. Some of them in essence are legislative adjudications...being among other things a repudiation of trial by jury and in effect bills of pains and penalties.”122 By the mid-eighties, the 1776 belief that a government could rest upon the freely exercised republican virtues of the people through a more or less direct democracy

117 FORREST MCDONALD, NOVUS ORDO SECLORUM 153 (1985). 118 See generally 5 Thorpe, Constitutions 2787 119 Corwin, Due Process Before the Civil War, supra note [--] at 375-76. See also ROSCOE POUND, THE FORMATIVE ERA OF AMERICAN LAW 39-40 (1950). 120 MCDONALD, supra note [--]. 121 Pound, supra note [--] at 39-40. See also Corwin, supra note [--] at 258; Federalist No. 48. 122 Mendelson, supra note [--] at 127. Accordingly, Professor McDonald has asserted that “Americans were not as secure in their property rights in 1776-1787 as they had been during the colonial period.” MCDONALD, supra note [--] at 154.

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gradually yielded to calls for a more robust separation of powers123--in no small part because of the exercise by state legislatures of powers that many believed should be reserved to an independent judiciary. Thomas Jefferson, commenting on the Virginia Constitution of 1776, remarked that The judiciary and executive members were left dependent on the legislature, for their subsistence in office, and some of them for their continuance in it. If therefore the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can it be effectual; because in that case they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches. They have accordingly, in many instances, decided rights which should have been left to judiciary controversy.... [these powers] in the same hands is precisely the definition of despotic government.124 As this sentiment grew, successive state constitutions gradually distributed some of the power that had been exercised by the legislative branch to the magistrate and judicial branches.125 Though state legislatures engaged in a number of acts that adjudicated disputes between individual parties, few of these were challenged in court. A variety of reasons account for this hesitancy to litigate such issues. State legislatures enjoyed the residue of the presumption that the legislature, like the king-in-parliament, was the highest court in the land. Most colonial legislatures had exercised judicial power, often in conjunction with the executive. It was not uncommon for the court of last resort to be composed of the colonial Governor or his agent and a number of members of the legislature and/or cabinet. By contrast, the written constitutions adopted by states upon independence uniformly separated the judicial from the legislative and executive powers. The two holdouts were Connecticut and Rhode Island, which did separate those powers in their first written constitutions, adopted in 1818 and 1842 (respectively).126 It remained for 123 See MCDONALD, supra note [--] at 177-78 (“The lesson [from Shay’s Rebellion and the like]... was that the American public did not possess a sufficient stock of virtue to sustain a republic, as republics had been traditionally conceived.”); WOOD, supra note [--] at 44653; 432 (“‘At the commencement of the revolution,’ Americans were telling themselves in the eighties, ‘it was supposed that what is called the executive part of a government was the only dangerous part; but we now see that quite as much mischief, if not more, may be done, and as much arbitrary conduct acted, by a legislature.’”) (quoting Phila. Pa. Packet, Sept. 21, 1786). 124 Thomas Jefferson, Notes on Virginia. See also Phila. Pa. Packet, Sept. 2, 1786 (quoted in Wood 454) (“When the assembly leave the great business of the state, and take up private business, or interfere in disputes between contending parties they are very liable to fall into mistakes, make wrong decisions, and so lose that respect which is due to them, as the Legislature of the State.”). 125 Wood 453. 126 Conn. Const. of 1818, Art. II (“The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”); Art. V, sec. 1 (“The judicial power of the state shall be vested in a Supreme Court of Errors, a Superior Court, and such inferiour courts as the General Assembly shall, from time to time, ordain and establish: the powers and jurisdiction of which courts shall be defined by law.”); Rhode Island Const. of 1842, art. V (“The powers of the government shall be distributed into three

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legislatures and courts to determine how the separation of powers would work out in practice, and legislatures continued to perform quasi-judicial functions, such as voiding a particular court judgment, for years.127 Additionally, the dominant theory of government during and after the war was a form of popular sovereignty that lent support to the general belief that the legislatures, and particularly the lower houses, as the most representative voice of the people, were constitutionally unassailable. Indeed, insofar as early state constitutions had been adopted through the typical legislative process and not through a special act of the people through a supermajority, there may have been no reason to suspect that acts of the state legislatures were subordinate to the state constitution. 128 These dynamics gradually changed from 1776 to 1789. Beginning with the Massachusetts Constitution of 1780, American began to believe that the basic framework of government must be established by an act of popular sovereignty, such as a constitutional convention elected by the people.129 This lent itself to the view that constitutions were superior to mere legislation. One of central features of constitutional reform was the adoption of a more definite separation between legislative, executive, and judicial powers. As we have seen, this has a clear implication for the meaning of “law,” and hence of “law of the land” and “due process of law.” Finally, the tendency of factionridden, unchecked state legislatures to disregard “public and personal liberty” and “private rights” in the service of “an interested and overbearing majority”130 led many Americans to recognize that legislatures, no less than executive officials must be controlled by the force of law. There may have been nothing that so undermined faith in legislatures as a guardian of popular liberty as legislative acts that abrogated the common law right to jury trial. According to custom, disputes for more than 40 shillings fell under the jurisdiction of a common law court and entailed factual determination by a twelve-member jury; smaller disputes typically were under the jurisdiction of a justice of the peace.131 State legislatures, however, occasionally passed statutes either dispensing with jury trial in certain kinds of actions, or by raising the 40 shilling jurisdictional floor. This directly raised the question whether a statute could violate the “law of the land.” Some early courts refused to enforce these statutes, regardless of the precise terms of the state’s constitution. Because courts at this time did not typically publish their opinions, we are left to guess their ultimate reasoning, but they were likely based on the idea that jury trial is an essential feature of the law of the land, protected since Magna Charta.. Courts also were reluctant to enforce ex post facto laws. A South Carolina court, for example, separate and distinct departments: the legislative, executive and judicial”); see also Taylor v. Place, 4 R.I. 324 (1856) (legislature has no judicial power). 127 See supra [Pound and Mendelson quotes]. 128 See generally Wood, supra note [--] at [--]. 129 The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 (Oscar Handlin & Mary Handlin eds., 1966). 130 The Federalist, No. 10 (Madison), Clinton Rossister edition, at 77. 131 HAMBURGER, supra note [--] at [--].

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declined to convict a recent immigrant of importing slaves when he had begun his transatlantic voyage before the prohibition had been enacted. 132 These decisions fell short of declaring the laws unconstitutional, however; instead, the courts engaged in equitable interpretation to avoid reading the statutes to abrogate basic due process norms. Likewise, courts struck down attempts by the executive to enforce laws in a way that would have denied the defendant the benefits of the law of the land. For instance, a Maryland court prohibited the executive from depriving a woman of her liberty as a result of her parent’s suspect marriage (one of them had allegedly been a slave), in the absence of a jury determination of the fact.133 Principally, however, it was legislative –not executive—acts abrogating the trial of jury that captured the public imagination in the decade of constitution-making. 1. Holmes v. Walton In 1778 the New Jersey General Assembly passed a law allowing “any person or persons whomsoever to seize and secure provisions, goods, wares and merchandize” carried from territory held by the British to New Jersey.134 They could seek title to the goods, regardless their value, according to a 1785 statute that gave jurisdiction for small claims to a justice of the peace and a jury of six, with no right of appeal.135 In Holmes v. Walton,136 petitioner argued that the abrogation of a twelve-person jury was “contrary to Law,” “contrary to the constitution of New Jersey,” and “contrary to the Constitution, practices, and Laws of the Land.” The New Jersey Constitution did not have a law of the land clause, but it did have a clause incorporating English common law and a clause providing for trial by a jury of an unspecified number of members.137 The New Jersey Supreme Court invalidated the statute without a written opinion. While it is impossible to know the court’s specific reasoning, the court concluded that the legislature 132 See ---. 133 See Butler v. Craig, 2 H. & McH 214 (Md. 1787). 134 Quoted in Austin Scott, Holmes v. Walton: The New Jersey Precedent: A Chapter in the History of Judicial Power and Unconstitutional Legislation, 4 AM. HIST. REV. 456, 456 (1899). 135 For a full overview of the facts and procedural history of the case, see Hamburger, Law and Judicial Duty 407-422. The classic studies of the case are Austin Scott, Holmes v. Walton: The New Jersey Precedent: A Chapter in the History of Judicial Power and Unconstitutional Legislation, 4 AM. HIST. REV. 456 (1899); Luois B. Boudin, Precedents for the Judicial Power: Holmes v. Walton and Brattle v. Hinckley, 3 St. John’s L. Rev. 173 (1929); 2 William Winslow Crosskey, Politics and the Constitutional History of the United States 950 (Chicago U. P. 1953). 136 There was no written opinion in Holmes v. Walton. Scott, supra note [----], at 459. The case was first recounted by the New Jersey Supreme Court in an 1802 case raising a constitutional question about when a state official had vacated a prior position before taking legislative office. See State v. Parkhurst, 9 N.J.L. 427, 444 (1802); see Wayne D. Moore, Written and Unwritten Constitutional Law in the Founding Period: The Early New Jersey Cases, 7 CONST. COMM. 341, 352 (1990). 137 Const. of N.J. (July 2, 1776), art. XXII (“That the common law of England, as well as so much of the statute law as have been heretofore practiced in this colony shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted as to the rights and privileges contained in this Charter; and that the inestimable right of trial by jury shall remain confirmed as a part of the law of this colony, without repeal forever.”).

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was prohibited by law--either the constitution, common law, or both--from abrogating the customary right to trial by a twelve-member jury.138 Whatever the reasoning, it must have been a holding that the legislature did not have free rein to make the law, if the effect was to infringe traditional rights of due process. 2. Trevett v. Weeden Nearly a decade later, in 1786, in the midst of nation-wide inflation and devaluation of paper money,139 the Rhode Island legislature passed a series of acts making paper money legal tender, requiring merchants to accept it at face value, and authorizing buyers to bring qui tam actions against merchants that rejected it.140 Such actions were to be subject to the jurisdiction of a special court, and trial was to be held “without any jury, by a majority of the Judges present, according to the Laws of the Land.” The act thus presented a bit of a puzzle. It purported to comply with the “Laws of the Land,” but it dispensed with trial by jury, which was a quintessential feature of that law. In Trevett v. Weeden,141 James Varnum represented a merchant sued under the statute. He argued that, though Rhode Island lacked a written constitution, its legislature was nonetheless bound by a kind of customary constitution memorialized by its seventeenth century charter. That charter was “declaratory of, and fully confirmed to the people the Magna Charta, and other fundamental laws of England”; “[t]he revolution hath made no change in this respect, so as to abridge the people of the means of securing their lives, liberty, and property.”142 He thus argued that under Rhode Island’s customary constitution, rights could be deprived only in accordance with the law of the land. Moreover, he argued, the very language of the act was nonsense: by authorizing judges to “proceed to trial without any jury according to the laws of the land” the act was, by its own terms, “impossible to be executed,” because the law of the land necessarily included a right to trial by jury. 143 The court agreed. A newspaper reported that

138 See, e.g., Scott, supra note [--], at 459-60. N.J. Archives, Envelope No. 18354, quoted in Wayne D. Moore, Written and Unwritten Constitutions, at 352. New Jersey’s history with invalid six-person jury statutes may have played into the court’s opinion. Before the Revolution, the Crown’s Privy Council had likewise invalidated another New Jersey statute that had attempted to increase the jurisdiction of the justice of the peace and an optional six-person jury from civil suits under 6 pounds to those under 12 pounds, thereby decreasing the common law jurisdiction of the traditional twelve-person jury for small claims. The Privy Council believed that the reduction of the twelve-person jury jurisdiction was at best imprudent. HAMBURGER, supra note [---], at 411 n. 29. 139 For background on the paper money crisis of 1786, see generally Janet A. Riesman, Money, Credit, and Federalist Political Economy, in BEYOND CONFEDERATION: ORIGINS OF THE CONSTITUTION AND AMERICAN NATIONAL IDENTITY 128, 142-56 (Richard Beeman, Stephen Botein, & Edward C. Carter II eds., Univ. N. Car. Press 1987). 140 See HAMBURGER, supra note [--] at 437. For a full account of the political, economic, and personal events surrounding the acts and the subsequent legal challenges to it, see Hamburger 435-49. 141 (R.I. 1786), private report reprinted in 1 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 417 (Bernard Schwartz ed., 1971). 142 See Varnum, The Case, Trevett Against Weeden 15, 22-23. 143 Id. at 31.

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Judge Howell ... declared ... the penal law to be repugnant and unconstitutional, and therefore gave it as his opinion that the Court could not take cognizance of the information. ---Judge Devol was of the same opinion.---Judge Tillinghast took notice of the striking repugnancy in the expressions of the act, “Without trial by jury, according to the laws of the land”---and on that ground gave his judgment the same way.---Judge Hazard voted against taking cognizance.---The Chief Justice [Mumford] declared the judgment of the Court, without giving his own opinion.144 This remarkable decision by judges who owed their one-year appointments to the state legislature suggests how deeply the right to jury trial was embedded in the legal and political mindset of Americans. Judge Tillinghast’s comment that the statute’s “expression” that juxtaposed abolition of “trial by jury” with “laws of the land” smacked of a “striking repugnancy” further suggests how closely those two notions were allied in the customary constitution. 3. Bayard v. Singleton The following year the North Carolina judiciary reached a similar conclusion in a case that, due to extensive debate on its constitutionality in the state legislature and in the public press by extraordinarily able attorneys,145 is a primary source of information regarding the public understanding of “due process of law” at the time of the ratification of the Fifth Amendment. North Carolina, like most states, had systematically confiscated Tory property during the Revolution. In 1784, victims of this confiscation, the Bayards, sued the subsequent buyer, Spyers Singleton, in the New Bern District Superior Court for recovery of their property. Singleton was not content to subject his ownership to the risks of a common law trial, and he successfully lobbied the House of Commons, through his good friend and legislator Abner Nash, to enact a statute securing the ownership rights of purchasers of forfeited estates by requiring dismissal of such suits “upon the motion or affidavit of the defendant.” Some members of the legislature opposed the act on constitutional grounds. They leveled three arguments against the law. First, “it is an ex post facto law … and therefore contrary to the constitution,”146 which had a clause expressly prohibiting retrospective criminal laws.147 Second, “a bill depriving all persons deriving their titles under obnoxious or incapacitated persons ... is a violation even of the forms of justice, and as an

144 Correspondence (Oct. 2), Providence Gazette (Oct. 7, 1786). 145 For a complete retelling of the story surrounding the case, see Hamburger 449-75. 146 Protest (Dec. 28, 1785), The Journals of the General Assembly of the State of North Carolina, 51 (second pagination series) (Newbern: 1786) in HAMBURGER, supra note [--] at 452 and n. 150. 147 CONST. OF N. CAR. (Dec. 18, 1776) Decl. of Rights XXIV (“That retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no ex post facto law ought to be made.”).

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unconstitutional law is nugatory.”148 Though its meaning is not entirely clear, this may have been an argument that the bill, by “depriving” persons of certain property without adherence to “the forms of justice,” would violate the state constitution’s law of the land clause.149 Third, the dissenting legislators argued that the law of the state must be generally applicable to all citizens, and laws that effectively deprive some citizens of the rights usually enjoyed by all would be “a denial of the known and established rules of justice.”150 This third argument suggests that the dissenters believed that the law of the land prohibited the legislature from adjudicating individual legal disputes. This is one of the earliest examples of the argument, which became increasingly more common, that legislation depriving individuals of their property is illegitimate if it is insufficiently general. In these arguments we see the transmutation of new notions of separation of powers into individual rights claims based on the “law of the land.” Consider the dissenting legislators’ full argument: the laws of this state ... must apply to all ranks of citizens; nor do we conceive it possible under the present bill to preclude any subject from the benefit of law by a denial of the known and established rules of justice, which protect the property of all citizens equally, nor to place any of them under the adjudication of the General Assembly, whose desire to redress the grievance may be fluctuating, uncertain and ineffectual.151 This is an argument that the General Assembly is to make law, which is to be generally applicable, to “protect the property of all citizens equally,” and not to engage in an “adjudication” to “redress [a] grievance.” The latter is the unique function of the courts. The contours of this argument suggest that “general law” interpretations of state law of the land and due process clauses are not as different in basic rationale from the “procedural” or “vested rights” interpretations as some commentators have suggested.152 American courts as early as the 1780s interpreted constitutional law of the land to require legislative acts to be generally applicable.153 Although the legislature rejected these arguments and enacted Abner Nash’s statute, the Bayards pressed their claim in district court, arguing that the act violated the ex post facto clause of the state’s constitutional declaration of rights. Singleton’s lawyers, including Nash, urged the classic positivist argument that “all acts of Assembly were laws, and their execution could not be prevented.”154 The court unanimously concluded that the statute was unconstitutional. “[B]y the constitution every citizen had undoubtedly the right to a decision of his property by a trial by jury,” and if “the Legislature could take 148 Protest. 149 N. C. Const. of 1776, Decl. of Rights art. XII. 150 Protest. 151 Protest. 152 See, e.g., Williams; Harrison; Ely. 153 See infra at [---]. 154 Correspondence (New Bern, June 7), Pa. Packet (July 1, 1786) in Hamburger 452-453.

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away this right” “[i]t might with as much authority require his life to be taken away without a trial by jury ... [or] without the formality of any trial at all.” The Court “ordered, that the suits in question should stand for trial in the next term, according to the course of the common law of the land.”155 An exchange of letters after the decision between its principal proponent, James Iredell, future Justice of the United States Supreme Court, and its principal opponent, Richard Dobbs Spaight, North Carolina delegate to the 1787 Constitutional Convention, reveals that the dispute was not primarily over whether the legislature was bound by the constitution as one of the laws of the land, but over whether the courts had the power to declare an act of the legislature void. Spaight wrote that “the Assembly have passed laws [including the law at issue in Bayard] unjust in themselves, and militating in their principles against the constitution.”156 His concern was the judges’ “usurpation of the Authority” to “declare void” acts of the legislature.157 This was the position that Blackstone had articulated with reference to acts of Parliament. Iredell responded simply that judges had a duty to decide cases according to the law of the land, including a written constitution.158 4. Alexander Hamilton’s Understanding of Due Process of Law One of the New York legislature’s first acts upon independence was to pass a bill stripping “Persons therein described”—the description was of Loyalists—of their citizenship.159 Alexander Hamilton, in a letter to the public as Phocion, opposed it as a violation of the treaty with Britain and “contrary to the law of the land.” He acknowledged that “[i]f there had been no treaty in the way, the legislature might, by name, have attainted particular persons of high treason for crimes committed during the war.” “[B]ut,” he argued, “independent of the treaty it could not, and cannot, without tyranny, disfranchise or punish whole classes of citizens by general descriptions, without trial and conviction of offences known by laws previously established declaring the offence and prescribing the penalty.” To do so, he argues, would violate “[t]he 13th article of the constitution,” which provided “that no member of this state shall be disfranchised or defrauded of any of the rights or privileges sacred to the subjects of this state by the constitution, unless by the law of the land or the judgment of his peers.”160 He then cited and adopted Coke’s definition of the law of the land: “due process of law, that is, by indictment or presentment of good and lawful men, and trial and conviction in

155 Correspondence (Newbern, June 7), Virginia Independent Chronicle (July 4, 1787) (emphasis added). 156 HAMBURGER 471. 157 472. 158 HAMBURGER 475. 159 The bill did not become law. It was vetoed by the Council of Revision, which presented its objections to the legislature in January, 1784, the same month Hamilton’s letter was published. The legislature reconsidered the law in February and declined to repass it. 3 PAPERS OF ALEXANDERS HAMILTON 483-84 n.1. 160 N.Y. Const. of 1777, art. XIII.

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consequence.” Hamilton argued that ex post facto criminal laws violated due process of law.161 Hamilton’s opposition to ex post facto laws against Loyalists did not end there. On January 13, 1787, Samuel Jones introduced into the New York Assembly “An Act for Regulating Elections.”162 While that act worked its way through the legislature, the legislature passed on January 26 a statutory bill of rights with three “due process” clauses.163 About a week later, Hamilton argued to the General Assembly that a proposed Senate amendment to the Act for Regulating Elections would violate the constitutional “law of the land” clause and the new statutory “due process clause.” The version passed by the Assembly would have disqualified the officers of British privateers that had attacked the “vessels, property, or persons” of the United States from holding any state office of trust.164 The Senate amendment would have extended the disqualification to any “owner or owners of such privateers or vessels of war.”165 Hamilton said that he had been “restrained by motives of respect for the sense of a reasonable part of the house” from opposing the House’s original “discriminating clauses,” but was obligated to speak against the Senate addition because “it would include almost every man in the city, concerned in navigation during the war.” [H]e hoped to be indulged by the house in explaining a sentence in the constitution, which seems not well understood by some gentlemen. In one article of it, it is said 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 the process of outlawry, as contradistinguished from trial by jury. But if there were any 161 Alexander Hamilton, A Letter from Phocion to the considerate Citizens of New-York On the Politics of the Day, Jan. 1-27, 1784 (New York, Printed by Samuel Loudon, 1784), in 3 THE PAPERS OF ALEXANDER HAMILTON 483, (Harold C. Syrett & Jacob E. Cooke, eds.) (1962). 162 4 THE PAPERS OF ALEXANDER HAMILTON 20-21 n.1. 163 The statutory Bill of Rights provided: Second, That no Citizen of this State shall be taken or imprisoned, or disseised of his or her Freehold, or Liberties, or FreeCustoms; or outlawed, or exiled, or condemned, or otherwise destroyed, but by lawful Judgment of his or her Peers, or by due Process of Law. Third, That no Citizen of this State shall be taken or imprisoned for any Offense, upon Petition or Suggestion, unless it be by indictment or Presentment of good and lawful Men of the same Neighborhood where such Deeds be done, in due Manner, or by due Process of Law. Fourth, That no Person shall be put to answer without Presentment before Justices, or Matter of Record, or due Process of Law, according to the Law of the Land; and if any Thing be done to the Contrary, it shall be void in Law, and holden for Error. Williams, supra note [--], at 441 n. 134 (quoting An Act Concerning the Rights of the Citizens of This State, 1787 N.Y. Laws,5-6) (emphasis added), 164 4 THE PAPERS OF ALEXANDER HAMILTON 34-35 n.1. 165 4 THE PAPERS OF ALEXANDER HAMILTON 34-35 n.1.

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doubt upon the constitution, the 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. Are we willing then to endure the inconsistency of passing a bill of rights, and committing a direct violation of it in the same session? In short, are we ready to destroy its foundations at the moment they are laid? Our having done it to a certain degree is to be lamented; but it is no argument for extending it.166 Commentators have divided on the meaning of this statement. Some have argued that Hamilton’s comment that “[t]he words ‘due process’ .. can never be referred to an act of legislature” meant the proposed act of the legislature could not have violated due process.167 This interpretation, we think, is untenable. After all, Hamilton was arguing on the floor of the legislature that the proposed statue would “commit[] a direct violation” of the “bill of rights,” referring specifically to the due process clause. In light of this assertion, and particularly in light of his argument as Phocion, his speech becomes clear. Hamilton, relying on Coke, states that the law of the land requires certain procedural safeguards before someone may be deprived of his rights. The legislature is inherently incapable of providing those safeguards, and thus the deprivation of rights must be left to that branch of government capable of doing so. To say that due process cannot “be referred to an act of legislature” is not to say that due process principles do not apply, but that the legislature is institutionally incapable of satisfying them. 168 Hamilton specifically refutes the argument that whatever the legislature does is by definition consistent with “the law of the land” because the legislature makes the law of the land. He regards the terminology of “due process” as making this point clear. It is important to note, however, and contrary to some commentators,169 that Hamilton’s constitutional argument is about the inability of the legislature to provide 166 New York Assembly. Remarks on an Act for Regulating Elections, THE DAILY ADVERTISER, Feb. 8, 1787, reprinted in 4 THE PAPERS OF ALEXANDER HAMILTON 34, 35-36 (Harold C. Syrett & Jacob E. Cooke eds., 1962). Elsewhere, Hamilton argued that there was no New York analog to the federal prohibition on ex post facto laws. The Federalist No. 84 (Alexander Hamilton) (1788). 167 See Easterbrook, supra note [--], at 98-9 n. 5; Berger, Law of the Land, supra note [--], at 10, 21, 29. 168 See Geddicks, supra, note [--], at 632 (“a legislature’s mere compliance with formal requirements for enacting a law did not mean that its acts necessarily accorded with the ‘law of the land,’ or constituted the ‘process of law’ owed to a person suffering a deprivation of life, liberty, or property”); Riggs, supra note [--], at 990 (Hamilton is arguing that “only courts, not legislatures, can provide due process of law”); Laycock, supra note [--] at 891 (“Hamilton is saying that legislatures cannot enact statutes depriving persons of rights, because only courts can deprive persons of rights. He is plainly wrong; only with statutory authorization from the legislature could the courts deprive persons of the right to hold public office.”). 169 Most of these commentators fail to distinguish between the kinds of legislative acts that Hamilton thought the due process clause prohibited; there is no indication that he thought they prohibited generally applicable and prospective laws. See Ely, Due Process Myth, supra note [--], at 326 (“His speech [-] lends support for the view that due process placed substantive restraints on legislative

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judicial process, not about “substantive due process” in the modern sense. The proposed statute would violate due process, Hamilton says, because the legislature cannot provide the procedures necessary for such a deprivation of rights. His argument is not “substantive” in the modern sense that the government as a whole has no authority to abrogate certain kinds of rights even by means of general and prospective legislation.

II. DUE PROCESS OF LAW AS A CONSTITUTIONAL CONSTRAINT ON AMERICAN LEGISLATURES The text of the due process clause of the fifth amendment and its legislative history are usually given short shrift as a source of clues to its meaning.170 We think that the text of the clause, the legislative history, and the structure of the Constitution and Bill of Rights all suggest that the due process clause was understood by a number of the framers limit the powers of all three branches, albeit in different ways. A. The Constitution 1. General and specific provisions The framers of the United States Constitution dramatically departed from the revolution-era vision of unmediated popular government throughlegislative supremacy. The first sentence of Article I limits Congress to the exercise of enumerated “legislative” powers, vesting all executive and judicial powers in separate branches. This establishes the basic framework for separation of powers. Moreover, Article 1, section 9 expressly deprives Congress of the quasi-judicial power to deprive individuals and groups of rights through bills of attainder, ex post facto laws, nonproportional taxes, or the revocation of the right of habeas corpus. Article 1, section 10 puts similar limits on the power of state legislatures, plus a ban on laws interfering with the obligation of contracts. The Bill of Rights then adds a number of provisions, applicable only to the federal government, which appear to be specific applications of due process, including various aspects of criminal procedure, plus the requirement of compensation for takings of property for a public use. And, of course, the Fifth Amendment includes the provision: “nor shall any person be deprived of life, liberty, or property without due process of law.” What is the relation between these various provisions? It is difficult to escape the conclusion that there is substantial redundancy. Surely the prohibition on bills of attainder and the requirement of a jury trial, to name just two examples, are comprised within the demand for “due process.” Some scholars have suggested that, to avoid power.”); Riggs, supra note [--], at 990 (Hamilton’s opinion, if widely held, would mean that “the fifth amendment limits the power of Congress to take away substantive rights,” which he says “is the very essence of substantive due process”); Laycock, supra note [--], at [-], 891 (“This is substantive due process with a vengeance,” but “[Hamilton] was plainly wrong.”). 170 See, e.g., Gedicks, supra note [--] at 641 (2009); Davies, Correcting Search-and-Seizure History, 77 MISS. L. J. 1, 131-38 (2007); James Ely, The Oxymoron Reconsidered, supra note [--] at 325; Riggs, supra note [--] at 947; Williams, supra note [--] at 445-446.

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redundancy, we must interpret “due process” in such a way that it would not overlap with the more specific provisions.171 We think this places too much weight on the interpretive canon against superfluous language. The framers specifically enumerated protections that they regarded as especially important, and then added a catch-all. It is impossible to give “due process of law” its historical meaning and avoid redundancy. Early on, the question of the relation between “due process” and the more specific provisions turned out to be significant only in constitutional litigation involving state law. At the federal level, litigants tended to challenge actions that violated specifically enumerated due process principles under those specific clauses rather than under the generic grab-bag of “due process.” But the Due Process and Takings Clauses of the Fifth Amendment did not apply to the states. The only clauses relevant to due process principles and applicable to states were the prohibitions of bills of attainder, ex post facto laws, and impairments of the obligation of contract found in Article I, section 9. Thus, litigants challenging state action in federal court attempted to fit violations of due process principles within one of these more specific categories. That is one reason why the Contracts Clause was the most frequently litigated constitutional provision in the Nineteenth Century. For example, in Fletcher v. Peck, the government of Georgia attempted to rescind land grants that had been procured through widespread bribery. In the absence of a Due Process Clause or Takings Clause applicable to the states, the Supreme Court construed the grant of land as a kind of contract, the obligation of which could not be impaired by subsequent legislation.172 The prohibitions on bills of attainder, ex post facto laws, and laws impairing the obligation of contract obviously are directed at legislatures, which are the only bodies that enact “bills” and “laws.” Moreover, they are targeted at two related but distinguishable legislative abuses: special laws passed by a legislature that deprived an identifiable individual of rights, and laws that operated retrospectively. Both types of legislation conflict with the separation of powers notion that the power to make laws – the power to “legislate” – is the power to establish general rules for the future, not to determine specific applications of law or to punish past acts.173 As we already noted, however, this notion was given the form of a specific constitutional prohibition only when the effect is a deprivation of rights. Congress and the state legislatures remained free to enact special laws for the benefit of particular persons, or retroactive laws that did not hurt anyone. “Due process” incompletely enforces the separation of powers. The Constitution expressly gives three quasi-judicial functions to Congress: (1) to the House, “the sole Power of Impeachment”;174 (2) to the Senate, “the sole Power to try all Impeachments”;175 171 See Harrison, supra note [--], at [--]. 172 Fletcher; see Michael W. McConnell, Contract Rights and Property Rights: A Case Study in the Relationship Between Individual Liberties and Constitutional Structure, 76 Calif. Law Rev. 267, 272-73 (1988). 173 “Blackstone and others deplored what the Romans called privilegia, or private law, such as ex post facto laws or bills of attainder and bills of pains and penalties; but the fact was that Parliament retained the power to enact such ‘unreasonable’ legislation.” McDonald, supra note [--] at 38. 174 Art. 1 sec. 2.

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(3) to both the House and the Senate the power to be “the Judge of the Elections, Returns and Qualifications of its own Members,” and the power to “punish its members for disorderly behavior, and, with the Concurrence of two thirds, expel a Member.”176 In addition, the Constitution left Congress the power to enact special bills for the benefit (but not the detriment or punishment) of identifiable individuals. Such bills were common acts of Parliament and state legislatures, including granting compensation to petitioners in cases sounding in tort or contract, which would otherwise have been barred by sovereign immunity, or pensions to soldiers and their families. The Due Process Clause does not apply to such bills, only to quasi-judicial acts that “deprive” someone of “life, liberty, or property.” Over time, Congress has also successfully asserted an inherent power to subpoena persons to testify and to punish persons who resist subpoenas by contempt of Congress.177 Otherwise, Article III provided that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” and “shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties.”178 Furthermore, Article III guaranties that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.”179 Thus Constitution guarantees the right to trial by jury, inseparable from the common law understanding of Chapter 29 of Magna Charta, with all of its implications as a political check on legislative, executive, and national power. The Constitution carefully allocates judicial power to the courts in all but a few enumerated instances, and denies that power to Congress. 2. The Due Process Clause No person shall … be deprived of life, liberty, or property, without due process of law180 The due process clause is tucked into a compound sentence without a proper subject. It is silent about who it prohibits from depriving rights without due process of law. It has long been argued that the clause can only be a limitation on the executive and possibly the judiciary, because it means nothing more than that officers must follow the law. The legislature makes law, according to this argument, and therefore it cannot be

175 Art. 1 sec. 3. 176 Art. 1 sec. 5. 177 McGrain v. Daugherty, 273 U.S. 135 (1927). See generally Josh Chafetz, Executive Branch Contempt of Congress, 76 U. Chic. L. Rev. 1083 (2009). 178 Art. 3 sec. 2. 179 Art. 3 sec. 2. 180 U.S.Const. am. 5.

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limited by the clause.181 We disagree. The passive voice in which the provision is framed suggests a focus on the result – the lawless denial of rights – rather than on the perpetrator. To be sure, the most common application of the clause is to the executive, but when Congress itself attempts to deprive a person of rights without making law, for example by holding a witness in contempt of Congress without notice or opportunity to be heard, this violates the plain meaning as well. More importantly, a law violates due process if it authorizes another branch to deprive persons of rights without due process – much as a law violates freedom of speech if it authorizes an executive officer to censor. If Congress can “make [a] law” abridging the freedom of speech, it can also make a law depriving other rights, without due process. The textual claim that the clause cannot apply to the legislature is therefore not persuasive. The legislative history confirms the view that the Due Process Clause was originally understood to apply to legislative as well as executive and judicial acts. As proposed to the first House of Representatives by James Madison, the Clause’s application to Congress was explicit. When Madison first presented a series of proposed amendments to the House, he indicated where each of them should be inserted into the original constitution. According to Madison’s scheme, the proposal that ultimately became the Fifth Amendment, which at that point already provided that no one shall “be deprived of life, liberty, or property without due process of law,” was to be inserted into “article 1st, section 9, between clauses 3 and 4.”182 This would have put the due process clause in the section of Article I of the Constitution devoted to enumerating the limits on congressional power, directly following the clause prohibiting Congress from enacting bills of attainder and ex post facto laws.183 Ultimately, at the urging of Roger Sherman, the First Congress decided to list the various provisions of the bill of rights as a separate set of amendments, rather than interpolating them into the existent constitution. Consequently, the explicit reference to Congress as the subject of the Due Process Clause was eliminated – but there is no reason to think that the change in lexical organization was understood or intended to be a change in substance or application. Just as the subject-less provisions of the Bill of Rights relating the quarter of soldiers in private homes, to the taking of property without just compensation, or to the imposition of cruel and unusual punishments were uncontroversially applicable to Acts of Congress, so too was the Due Process Clause. In commenting on his proposed Amendments, Madison began by justifying a bill of rights in the American context. He argued that America’s situation is different than 181 This argument is both very old, and very recent. See, e.g., Nicholas Quinn Rosenkranz, The Objects of the Constitution, 62 Stan. L. Rev. 1209 (2011); Richard Dobbs Spaight, Harrison, supra note [--] at [--], et al. 182 1 Annals of Cong. 451 (July 8, 1789). At the same time, Madison proposed an amendment with two clauses, the first of which ultimately failed (but that was mirrored in some state constitutions). It would have added to the constitution as article seven the provision that “The powers delegated by this constitution are appropriate to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or the judicial the powers vested in the legislative or judicial, nor the judicial exercise the powers vested in the legislative or executive departments.” The second clause of this proposed amendment became the ninth amendment. 183 See U.S. Const. Art. 1, Sec. 9.

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Britain’s, where “the declaration of rights” “[has] gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite.” By contrast, “the people of America are most alarmed” that “the trial by jury, freedom of the press, or liberty of conscience” are unsecured by “Magna Charta” or “the British constitution.” While “it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States.” Although Madison may not have spelled out the logic of placing the due process clause in Article I, this logic is apparent; it is the same as the logic for making the First Amendment apply to “Congress.” Outside of the limited prerogative powers of the President and inherent powers of the judiciary, the authority of those branches is confined to the execution and enforcement of the law. If Congress is forbidden to pass laws authorizing a deprivation of life, liberty, or property without due process, then the Constitution secures individual liberties against all three branches. There was no commentary or debate about the text that became the Fifth Amendment Due Process Clause, but circumstances strongly suggest that Madison deliberately chose to employ the phrase “due process of law” instead of the Magna Charta formula of “law of the land.” The North Carolina, Pennsylvania, and Virginia ratifying conventions each sent a proposed amendment that parroted, more or less, the “law of the land” language of Chapter 29 of Magna Charta. Only New York, which, as we have seen, had some experience with both a law of the land and a due process clause, proposed using the phrase “due process of law.” It seems unlikely that Madison would have rejected the phrasing proposed by his own state, especially when that proposal commanded the assent of most others, without a solid reason. We think it most likely that Madison was trying to avoid any textual conflict, or at least confusion, with Article IV of the Constitution. That provision states that “Laws of the United States” “made in pursuance” of “This Constitution” were to be “the supreme Law of the Land.” Had the fifth amendment provided that no person was to be deprived of life, liberty, or property but by the law of the land, interpreters might have presumed that deprivations were permissible whenever they were enacted pursuant to the Constitution. The logical corollary would be that no act of Congress, “the supreme Law of the Land,” could violate the law of the land clause.184 By framing the amendment in terms of due process of law instead of law of the land, Madison avoided foreclosing the possibility of applying the due process clause against Congress. Recall that this was Hamilton’s analysis of the significance of “due process” in the New York bill of rights. As to the modern view that the Due Process Clause renders certain unenumerated but fundamental rights impervious to legislative impairment, the text of the Clause seems to preclude such an interpretation. The Clause says that no one may be deprived of the relevant set of rights “without due process of law.” That surely means they may be deprived of those rights if due process has been accorded. The words chosen would be a very odd way of communicating the idea that the rights mentioned are inalienable. One argument for an original understanding of “substantive due process” advanced by contemporary scholars is that the “law” in “due process of law” included 184 See Williams, supra note [--], at [--].

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some form of natural law. On this understanding, laws made by Congress that did not conform to natural law were not really law. We do not here dispute that some early American jurists may have held either to a classical understanding of natural law or to the medieval hierarchy of law, where natural law provided general principles with which human law must, normatively or legally, comply. By the late eighteenth century, however, even among those who did not hold to parliamentary or legislative sovereignty, natural law--in contrast to the English customary constitution and the principles of Magna Charta--does not appear to have played a constraining role on legislation. Although Lockean legal theory assumed the reality of a capacious set of natural rights, these were not understood as trumping valid legislation.185 Many of the framers understood that the express provisions of the constitution entailed certain reservations of rights, but there is no evidence that any believed that acts of Congress would be evaluated by reference to natural law. Indeed, Article VI defines “the Supreme law of the land” in purely positivist terms: the Constitution, acts of Congress, and treaties. While the law of nations and reserved (but unenumerated) individual rights are acknowledged in the text of the Constitution and the Bill of Rights, the Supremacy Clause implies that they are subordinate to the “Supreme law of the land,” which was entirely positive. B. Early Due Process Interpretations Although the leading legal minds of the founding generation believed that Congress was bound by the due process clause, it remained to be seen how that understanding would work out in application. It was not until 1856 that the Supreme Court first had occasion to interpret and apply the Due Process Clause. The occasion, which will be analyzed in fuller detail below, was an Act of Congress that authorized executive officials to seize private property without judicial warrant or a jury trial. In keeping with arguments advanced by lawyers and courts from the earliest days of the republic, the Supreme Court declared in Murray’s Lessee that to comply with due process, statutes must either follow common law procedures or, if they did not, used alternative procedures that the courts would regard as fair and appropriate. In modern parlance, this is “procedural due process.” The second and more complicated way that courts applied due process to legislatures was to invalidate special acts that directly deprived a specific person of a “vested” property right. These “vested rights” cases were not always decided under a due process or law of the land clause, but they almost always turned on the following logic: (1) the legislature has only legislative power; (2) the legislative power requires that laws be both general and prospective; and therefore (3) legislative acts that deprive specific persons of rights that they already acquired are constitutional violations. On these principles, courts invalidated retrospective and special acts of legislatures that deprived persons of rights for violating law of the land, due process, obligation of contracts, and other federal and state constitutional clauses. The precise meaning of “general” and “prospective” was open to a range of reasonable disagreement, and some courts, as we 185 See McConnell, Ninth Amendment, supra note [--], at [--].

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argue, went too far to strike down legislation that was in fact general and prospective. But even these courts based their rulings on separation of powers principles, not on a modern “substantive due process” theory all persons possess certain inalienable rights that the legislature has no power to forbid. 1. Congressional Authorization of Due Process Violations From early in the republic, many understood that the requirement of due process limited the legislature’s power to authorize other institutions to deprive people of rights without due process of law. Purported authorizations of due process violations were themselves a violation of due process of law.186 In Lindsay v. East Bay Street Commissioners,187 the South Carolina Supreme Court considered the validity of an act authorizing the City of Charleston to appoint three commissioners to take certain private lands for a public street, “and to assess the owners of lots near or adjoining to it, in proportion to the benefit they were likely to receive by it.” One of the landowners sued for a prohibition against the taking, arguing that the act authorized the commissioners to take land without consent, jury trial, or adequate compensation in violation of state constitution’s law of the land and jury trial clauses. The former provided “That no freeman of this State be taken or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the judgment of his peers or by the law of the land.”188 The latter provided “that the trial by jury shall remain inviolably preserved.”189 The South Carolina Constitution did not have a takings, just compensation, or due process clause. The city recorder defended on the ground that the power of eminent domain had been “recognised by magna charta and confirmed to the state by our own constitution.”190 He admitted “that the legislature had no authority to interfere between individuals in relation to their private property, and by an act in a shorthanded way to change the rights of the parties and to take the property from A. and give it to B. This, he said, was against both magna charta and our own constitution.”191 But a taking for a public use, he argued was in accord with the law. The court split. Two of the judges voted to uphold the law.192 The exercise of eminent domain, they concluded, was “part of the lex terrae, which both [magna charta

186 To read: James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 Harv. L. Rev. 643 (2004); Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence and the Values of Procedural Due Process, 95 Yale L. J. 455 (1986); Martin H. Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 Duke L. J. 197. 187 2 S.C.L. (2 Bay) 38 (Ct. App. 1796). 188 S.C. Constitution of 1778, Art. XLI. 189 Id. Art. VI. 190 Id. 191 Id. at 42. 192 Id. at 56.

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and the law of the land clause] were meant to defend and protect.”193 The state constitution’s law of the land clause “confirmed all the ancient rights and principles, which had been in use in the state, with the additional security, that no bills of attainder, nor ex post facto laws, or laws impairing the obligation of contracts, should ever be passed in the state.”194 They appeared to agree that just compensation was required under the law of the land, but they believed that the city’s assessment of the land’s value and offer of compensation was sufficient. The other two judges thought the law was unconstitutional as a legislative deprivation of property against the law of the land. Judge Burke wrote that the law of the land required that exercises of eminent domain be coupled with “fair compensation made to the private individual, for the loss he might sustain by it, to be ascertained by a jury of the country.”195 Judge Waties agreed but, as usual, elaborated. He cited Vattel, van Bynkershoek, and Blackstone to the effect that the government may exercise the power of eminent domain, but only with just compensation. He then cited an act of Parliament authorizing the taking of private land that provided for a jury trial (upon demand) on the issue of what amount of compensation would be just. He asserted that “[t]he rights of our citizens are not less valuable than those of the people of England: we have besides a constitution, which limits and controls the power of the legislature,” quoting the law of the land clause. He maintained that the constitution prohibited the legislature from depriving a freedom of his property, “but by such means as are authorized by the ancient common law of the land,” which, in this case, required full compensation. His bottom line was this: “the law under consideration does not provide any indemnification, nor does it make the public responsible in any way for any injury which might be done to the plaintiffs. It has not therefore complied with the terms of the common law, and is not conformable to the constitution.”196 St. George Tucker argued in his 1803 treatise that the Due Process Clause prohibits Congress from enacting a law that would authorize the executive and judiciary to deprive persons of rights without due process of law. In particular, Tucker, citing arguments raised in the Virginia and Kentucky General Assemblies, assailed the Alien and Sedition Acts for giving the President the unilateral authority to declare aliens traitors and to banish them from the United States. He argued that the statute “seems impossible to validate, unless we could conceive that aliens are not persons, that the suspicions of a president of the United States are a probable cause supported by oath, or affirmation; that the opinion or judgment of a president is a trial by jury and a conviction, (in case of treasonable acts,) upon the testimony of two witnesses; and that neither imprisonment, nor banishment, is any deprivation of personal liberty.”197 The interesting point here is not the substance of Tucker’s understanding of what due process requires, that no one may be deprived of personal liberty (including 193 Id. at 57. 194 Id. 195 Id. at 58. 196 Id. at 60. 197 2 BC 137-38 n. 24. See also Tucker’s Blackstone Commentaries 306-07.

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imprisonment or banishment) except by trial and conviction by a jury on charges based on probable cause supported by oath. That understanding was conventional. Chancellor Kent described it as “a self-evident proposition, universally understood and acknowledged throughout this country, that no person can be taken, or imprisoned, or disseised of his freehold, or liberties, or estate, or exiled, or condemned, or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers.”198 The interesting point is that Tucker declared the statute itself, the Alien Act, as invalid on due process grounds, and not merely President’s acts pursuant to the statute. This demonstrates that Tucker believed that due process was more than the requirement that courts and executive officers follow the law; it was a limitation on the legislature itself, preventing the legislature from authorizing courts and executive officers to invade rights without the traditional protections of probable cause and trial by jury. This principle is the nub of the modern doctrine of procedural due process, which tests the procedures provided by the legislature against enduring constitutional standards. Outside the context of a judicial proceeding, in 1819, Attorney General William Wirt advised the Secretary of War that the due process clause prohibited Congress from abrogating the right to jury trial.199 The question was whether an act subjecting West Point cadets to the jurisdiction of courts martial would deprive them of the constitutional right to a jury trial. Wirt listed the jury trial clause of Article 3 section 2, the grand jury and due process clauses of the fifth amendment, and the jury trial provision of the seventh amendment as “positive and repeated provisions” in the constitution of the right to jury trial.200 From these provisions he concluded that “Congress has no power to pass a law which shall deprive the person accused of a criminal or otherwise infamous offense, of his trial by jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger.”201 Indeed, the entire Bill of Rights follows this pattern. Congress may not make a law abridging the freedom of speech, and since the executive and judiciary can deprive someone of liberty only according to due process “of law,” none of them can abridge the freedom of speech. To be sure, a few early decisions held that state law of the land clauses did not limit the power of the state legislature.202 These decisions, we believe, were the remnant of a dying view, which was based on the Blackstonian idea of Parliament rather than the new American view of a Congress limited by constitutional positive law. The Supreme Court first decided a case under the Due Process Clause in 1856, holding that the clause requires that laws abrogating common law procedures must satisfy judicial standards of fundamental fairness. In Murray’s Lessee v. Hoboken Land &

198 2 James Kent, Commentaries on American Law 9-10 (1827). 199 Hon. William Wirt, Letter to the Secretary of War regarding Cadets at West Point, in 7 Op. Att’y Gen. 276 (August 21, 1819). 200 276-77. 201 277. 202 Mayo v. Wilson, 1 N.H. 58 (1820?) (concluded after a review of Coke and Sullivan that due process does not limit the legislature). See also the much less conclusive decision in argument of counsel in --- v. State, 2 Hayw. (N.C.) 29, 38 (1794) (after concluding law of the land clause limited legislature, court reversed upon an argument to the contrary by NC Attorney General Haywood).

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Improvement Co.,203 a customs officer owed money to the treasury department. Officers of the treasury sought to secure a lien on the custom officer’s property in the amount of the debt by a “distress warrant” issued pursuant to an act of Congress that authorized such instruments. The court considered whether the acts of the treasury officers, who did not have federal judicial power under Article 3 of the Constitution, could deprive the customs officer of his rights, so long as he was given due process of law, and if so, whether the warrant constituted due process of law.204 It took no effort for the Court to conclude that “[t]he article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process ‘due process of law,’ by its mere will.”205 The question was how to determine which process was constitutionally due, such that Congress could not abrogate it. The Court decided that it would look in two places for evidence of the contents of due process: (1) the procedures required by the text of other constitutional provisions; and (2) the “settled usages and modes of proceedings existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.” After reviewing the English history of governmental debt collections, the Court concluded that there had always been a “summary method for the recovery of debts due to the crown” that the Americans had not changed, and therefore Congress was not prohibited by the due process clause from authorizing the recovery of a federal debt upon a “distress warrant,” rather than by “a trial according to some settled course of judicial proceedings.”206 The opinion in Murray’s Lessee is relevant to our inquiry for three reasons. First, it confirms the understanding that the Due Process Clause of the Fifth Amendment applied to Congress and restrained the ability of Congress to depart from traditional legal procedures in cases affecting private rights. Second, it rejects the redundancy argument, made by some modern scholars, that the Due Process Clause cannot overlap other constitutional provisions. And third, it addresses for the first time the relation between longstanding procedural processes and legislative power to change or reform those processes. Under the Court’s analysis, longstanding procedures, if not “acted upon” by the legislature, constitute due process, and require no further examination. But if Congress has departed from longstanding procedures, the Court has an obligation to examine what Congress has done and ensure that the new procedures pass constitutional muster. Put differently, the traditional procedures of the common law are by definition sufficient to satisfy due process. Only departures from the traditional common law procedures must be scrutinized for fairness under the due process clause.207 203 59 U.S. 272 (1856). 204 59 U.S. at 275-76. 205 Id. at 277. 206 Id. at 280. See the state cases listed by the Court at page 280. 207 See, e.g., Hurtado v. California, 110 U.S. 516 (1884); Goldberg v. Kelly, 397 U.S. 254 (1970); Matthews v. Eldridge, 424 U.S. 319 (1976); Burnham v. Superior Court, 495 U.S. 604 (1990).

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In Hurtado v. California, the Court applied the Fourteenth Amendment Due Process Clause to a state law that abrogated the common law right to indictment by a grand jury. The Court upheld the law at issue, but gave a helpful gloss on Murray’s Lessee rule in dicta: “not every act, legislative in form, [] is law. Law is something more than mere will exerted as an act of power.”208 The Court went on to list the sorts of legislative acts that would run afoul of due process of law: acts of attainder, bills of pains and penalties, acts of confiscation, acts of reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments and decrees, and other similar special, partial, and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude.209 The Court concluded, however, that substitute procedures provided he legislation were sufficiently equivalent to the grand jury indictment that due process had been satisfied. Hurtado was the culmination of the interpretation of due process given by numerous early commentators and courts: due process limits a legislature’s power to abrogate common law procedures and thereby authorize another branch to directly deprive persons of rights without due process. 3. Special or Retrospective Legislative Acts that Deprive Persons of Rights By the late 1780s, many American lawyers had come to believe that special laws that deprived people of rights and retrospective laws were symptoms of the same institutional deficiency of the early constitutions: arbitrary--which means unjust--rule by the majority. 210 Accordingly, the framers of the Constitution of 1785 stripped Congress was deprived of almost all the quasi-judicial powers that had resided in Parliament. This eliminated several categories of cases that would otherwise have been decided under the Due Process Clause. Significantly, every state constitution took the same course: they all eliminated the legislative role as a court. A few legal thinkers, such as Hamilton, St. George Tucker, Madison, Iredell, and Waties, recognized immediately that prohibiting special and retrospective laws followed from the separation of powers. One of the reasons they gave for prohibiting such laws was that they affected a deprivation of individual rights without common law procedural protections, especially a jury trial. More fundamentally, however, if the legislature could 208 Hurtado v. California, 110 U.S. 516, 535 (1884). 209 Hurtado, 110 U.S. at 536. 210 Special laws tend to act retrospectively, but not necessarily. An example of a special law that would not be retrospective would be a legislative act that declared that a particular person or corporation had violated a previously existing law.

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enact and enforce deprivations of liberty or property in specific cases there was no feasible way to ensure that the proceeding would respect established law, whether substantive or procedural. In other words, the requirement of due process was the main rationale for prohibiting special and retrospective laws that deprived people of rights. As Hamilton had explained , a legislature would be incapable of providing the process that was guaranteed to individuals before they could be deprived of their life, liberty, or property. As Ryan Williams and others have noted, antebellum courts in the early republic increasingly invalidated state laws that divested specified individuals of vested property rights. Courts moored their decisions in a variety of constitutional provisions—including law of the land, obligation of contracts, and due process clauses. These “vested rights” cases bear a similarity to substantive due process in that they often use the language of “inviolable” rights and therefore seem to protect vested rights against any form of governmental deprivation, and not just action that lacks legislative authorization or proper procedural execution and judgment. In this way, it seems that the courts put certain property rights beyond the reach of the legislature, just as modern courts have put certain liberty interests beyond the scope of the legislature in the name of “substantive due process.” Notwithstanding courts’ language of inviolability, however, the vested rights doctrine did not hold that certain property rights were inviolable—it simply extended the separation of powers logic to protect property rights held under positive law from deprivations without the judgment of a court. The government may only forcibly deprive a person of title to a particular property pursuant to a judicial decision under a general and prospective law, whether that law provided for general taxation, the taking of land for public use, or criminal punishment. By contrast, the modern substantive due process cases invalidate general and prospective positive law in favor of unenumerated liberty interests that belong to all people and that are entirely beyond the reach of government. Antebellum vested rights cases, we will argue, were based on a strong version of the separation of powers notion that legislatures must pass laws that are both general and prospective. This was not, fundamentally, a matter of natural rights but of the proper nature of legislative activity, and was with a logical development from the due process arguments made by Jefferson, Hamilton, and others in the revolutionary period. The logic consistently relied upon in vested rights cases was this: Chapter 29 and its constitutional offspring prohibited depriving persons of rights without the law of the land or due process; only a court could provide due process; legislatures were denied the judicial power but were given the power to make law; law by definition had to be general and prospective; therefore a legislature could not may not pass special or retrospective bills that deprive persons of “life, liberty, or property,” any more than it could decide cases through bills of attainder or retrospectively impair liberty through ex post facto laws. The prospectivity and generality requirements were easy to apply in cases where the legislature passed a bill that took from A and gave to B. They became more contentious when a law did not name particular pieces of property but nonetheless selectively applied to property held by identifiable people. The scope of these requirements were subject to some amount of case-by-case determination. But contrary 49

to some modern scholars, they were conceptually a far cry from modern substantive due process precisely because they rested on entitlements created by positive law and were based, at bottom, on separation of powers principles rather than notions of inalienable natural rights. The principle of prospectivity affected liberty and property claims in an analogous though not identical fashion. Once a person had exercised a natural liberty, in a manner consistent with the positive law existing at the time of the act, the prospectivity principle precluded subsequent acts of legislation to punish the conduct. This principle did not, however, preclude the legislature from passing laws regulating or even forbidding such acts in the future, assuming such legislation was within the enumerated authority of the legislative body and there was no other constitutional reservation of the particular right. Similarly, once a person had acquired property pursuant to the positive law existing at the time of the acquisition, the prospectivity principle precluded subsequent acts of legislation nullifying the acquisition. This principle did not, however, preclude the legislature from passing general laws regulating certain uses of property by all persons, or from passing laws regulating or forbidding particular modes of property acquisition or contract formation in the future. Nor did it prohibit the government from retrospective nullification of property acquisition if the government provided an equivalent value in the form of just compensation. This, we think, is not because just compensation is an inalienable right derived from natural law but because the provision of just compensation cancels out the deprivation and legitimizes an action that otherwise would violate due process. The principle of generality applies differently to claims of liberty and property. Generally speaking, the liberty claims that have featured in modern substantive due process cases have been on behalf of all persons. Everyone has a right to make contracts to sell their labor, everyone has a right to engage in intimate relations with persons of either gender, and so forth. Thus the principle of generality plays no part in the analysis of these claims. (Some might argue that abortion rights are an exception because only women would be subject to laws prohibiting abortions. This is why, to many people, abortion appears to be a gender equality issue rather than a libertarian issue. But it remains true that abortion laws apply to all people: no one is permitted to get one. The laws are as general as the nature of the case permits.211) By contrast, the vested rights cases invariably involved unique rights of determinate persons. Until Wynehamer, which we will discuss below, no case involved a general law stripping all persons of a property right. Rather, the question always was whether laws taking property from one person and giving it to another (what Justice Chase called an “law taking property from A to giving it to B”), or abrogating a property right and relocating its privilege in the state were permissible. In these cases, in addition to any prospectivity problems, the legislature was effectively deciding “cases or controversies” involving the rights of individuals. This offended the separation of powers, which was the logical and rhetorical core of the early vested rights cases. a. Liberty as a Natural Right 211 See Michael W. McConnell, How Not To Promote Serious Deliberation About Abortion, 58 U. chi. L. Rev. 1181, 1187 (1991).

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In the early years of the Republic only one major figure charged a legislature with depriving someone of liberty without due process of law, but that charge illustrated the separation of powers logic that underpinned the numerous property cases of the era. Robert Randall was the first to assert that a house of Congress had violated the due process clause. In 1795, Randall tried to bribe a few members of the House of Representatives to grant him land in the Northwest Territory. Upon discovery, the Speaker ordered the serjeant at arms to take him into custody. The House voted him guilty of “contempt to, and a breach of the privileges of” the House and ordered him detained indefinitely.212 Randall protested that he had been arrested, tried, convicted, and imprisoned without due process of law in violation of the Fifth Amendment.213 The House did not agree.214 Later, though, St. George Tucker, a Jeffersonian jurist, took up Randall’s cause in his influential 1803 commentary on Blackstone.215 Tucker maintained that the House had violated due process of law by punishing Randall without indictment or presentment of a grand jury, and without conviction by an impartial jury of the state and district where the crime had been committed. The congressional contempt proceeded, he argued, violated all of these due process protections. .216 Tucker’s explanation of due process focuses on the relation between due process of law and the separation of powers: By the amendments to the constitution, no person shall be deprived of life, liberty, or property, without due process of law. Due process of law as described by Sir Edward Coke I, is by indictment or presentment of good and lawful men, where such deeds by done in due manner, or by writ original of the common law. Due process of law must then be had before a judicial court, or a judicial magistrate. The judicial power of the United States is vested in one supreme court, and such inferior tribunals, as congress may establish, and extends to all cases in law and equity, arising under the constitution, &c. In the distribution of the powers of government, the legislative powers were vested in congress ... the executive powers (except in the instances particularly enumerated,) in the president and senate. The judicial powers (except in the cases particularly enumerated in the first article) in the courts: the word the, used in defining the powers of the executive, and of the judiciary, is, with these exceptions, co-extensive in its signification with the word all: for all the powers granted by the constitution are either legislative, and executive, or judicial; to keep them 212 Proceedings of House of Representatives in the Case of Robert Randall and Charles Whitney 30-31 (1795). 213 DAVID CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801 (U. of Chicago 1999). 214 See 1 ST. GEORGE TUCKER. BLACKSTONE’S COMMENTARIES 200. 215 See William Treanor, The Case of the Prisoners and the Origins of Judicial Review 145 U. PA. L. REV. 491, 520-21 (1994) (Tucker’s background and the influence of his treatise). 216 Tucker at x.

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for ever separate and distinct, except in the cases positively enumerated, has been uniformly the policy, and constitutes one of the fundamental principles of the American governments. It will be urged, perhaps, that the house of representatives of the United States is, like a British house of commons, a judicial court: to which the answer is, it is neither established as such by the constitution (except in respect to its own members,) nor has it been, nor can it be so established by authority of congress; for all the courts of the United States must be composed of judges commissioned by the president of the United States, and holding their offices during good behaviour, and not by the unstable tenure of biennial elections.217 Tucker thus begins his argument asserting that the “amendments” to the constitution require due process of law, which he equates with judicial process, especially trial by jury. The next logical step in his argument is that Congress has not been given judicial power in general: only with “respect to its own members.” For Congress to exercise the judicial power over a non-member was a denial of due process. Tucker lists other constitutional failures of the contempt proceedings. The House arrested Randall without a warrant “supported by oath or affirmation”;218 held Randall to answer for “an infamous crime” “without indictment or presentment of a grand jury”;219 and tried him of a crime without a public trial by “an impartial jury of the state and district” where he committed the crime.220 Tucker apparently believed that due process as applied to Congress was best understood by reference to the separation of the judicial from the legislative power, and that due process was a general constitutional rule that encompassed a variety of more specific procedural constitutional rules. Evidently, the members of the House did not share Tucker’s opinion that punishing non-members for contempt was a violation of due process of law, and, whatever its merits, Congress’s power to hold non-members in contempt is now firmly established.221 Tucker’s discussion, however, was an early argument by a leading lawyer that the Due Process Clause prohibits Congress from exercising quasi-judicial power to deprive an individual of liberty. We speculate that the reason there were not more allegations of legislative deprivations of liberty is because the Ex Post Facto and Bills of Attainder Clauses made it clear that Congress and the states lacked the power to directly deprive persons of liberty with retroactive or special laws. Property posed a harder question.

217 218 1 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES 204; Am. 6. 219 Am. 7. 220 1 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES 204-5. 221 To these authors, it would seem more consistent with due process for Congress to refer any cases of contempt for prosecution in the courts, at least where the sanction is detention or fine.

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2. “Vested” Property Rights a. “A law that takes property from A and gives it to B” During the late colonial period, courts sometimes invalidated acts of colonial legislatures that took property from one person and gave it to another --222 a practice Justice Chase described in Calder as “taking from A and giving to B.”223 As a matter of constitutional theory, this was unexceptional; colonial legislatures were subordinate bodies, bereft of sovereign authority, and under British practice the acts of such bodies were subject to judicial review for reasonableness.224 Even after Independence, however, state courts sometimes cited these pre-Independence decisions as precedent for review of state legislation of the same nature, even in the absence of a state constitutional analog to the Takings Clause.225 These cases were the germ of what later became known as the “vested rights” doctrine. Courts protecting vested property rights against legislative deprivation cited a variety of constitutional grounds, depending on the precise contents of the applicable state constitution.226 In terms of federal constitutional law, courts typically invoked the Bill of Attainder Clause227 or the Contracts Clause.228 In the absence

222 Cite the cases. 223 Calder v. Bull. 224 Cite Hamburger, Sarah Mary Bilder. 225 See, e.g., Lindsay v. Commissioners, 1 S.C.L. (1 Bay) 382 (Ct. Com. Pl. 1794). 226 For prior scholarly discussions of vested property rights, see, e.g., Edward S. Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 HARV. L. REV. 366, 376-77 (1911); Edward S. Corwin, The Basic Doctrine of American Constitutional Law, 12 MICH. L. REV. 247, 258 (1914). For more recent scholarship on the topic, see JOHN V. ORTH, DUE PROCESS OF LAW: A BRIEF HISTORY (2004); John V. Orth, Taking from A and Giving to B: Substantive Due Process and the Case of the Shifting Paradigm, 14 CONST. COMMENT. 337 (1997); Gordon S. Wood, The Origins of Vested Rights in the Early Republic, 85 VA. L. REV. 1421 (1999); JAMES W. ELY, THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS 59-82 (2008) (natural law as the origin of vested rights doctrine); James L. Kainen, Nineteenth Century Interpretations of the Federal Contract Clause: The Transformation from Vested to Substantive Rights Against the State, 31 Buff. L. Rev. 381 (1982). 227 See, e.g., Cummings v. Missouri, 71 U.S. 277 (1866). In Cummings, the Court invalidated a Missouri statute that imposed a test oath to punish persons who had been Confederate sympathizers during the Civil War, as a bill of attainder and ex post facto law. [Both?] In the course of its opinion, the expressly linked the ex post facto and bill of attainder clauses to the due process clause of the fifth amendment, describing all three provisions as protections from retroactive deprivations of “natural rights” in life, liberty, or property. See Cummings, 71 U.S. at 298. The same year, the Court held a similar test oath imposed by act of Congress invalid as a violation of the Fifth Amendment Due Process Clause. Ex parte Garland, 71 U.S. 333, 345-48 (1866). 228 See, e.g., VanHorne’s Lessee v. Dorrance, 2 Dall. 309 (1795) (Paterson, J., concurring); Cooper v. Telfair, 4 Dall. (U.S.) 14 (1800); Society v. Wheeler, 2 Gal. 103 (U.S.C. Ct. 1814) (Story, J., concurring); Terrett v. Taylor, 9 Cr. 43 (1814) (Story, J.) (giving no effect to Virginia law transferring traditionally Anglican land from parish vestries to county overseers as a violation of federal Constitution); Fletcher v. Peck, 4 wheat. (U.S.) 518 (1819) (Marshall combines vested rights doctrine with obligation of contracts clause); Dartmouth College Case, 4 Wheat. (U.S.) 518 (1819) (same doctrine upheld); Satterlee v. Matthewson, 2 Pet. (U.S.) 380, 681 et seq. (1829) (Johnson, J. concurring) (the whole vested rights doctrine as applied through the obligation of contracts clause would have been avoided “by giving to the phrase ex post facto its original and natural application”). Ogden v. Saunders is particularly on point. States may enact

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of a state Takings Clause, Contracts Clause, or Due Process Clause, litigants often invoked state constitutional provisions guaranteeing jury trials, separating the judicial from the legislative power, or requiring that deprivations of right be pursuant to the law of the land.229 In New York and Massachusetts, courts sometimes invalidated such statutes for violating natural rights or fundamental principles not expressly articulated in the state constitution.230 These cases to not attribute their natural law thinking to due process. That, we believe, is a modern confusion. The separation of powers rationale is a powerful lens through which to analyze the vested rights cases of the early republic. The earliest were Symsbury Case231 and Bowman v. Middleton,232 both of which involved conflicting grants of land granted by colonial legislatures. The courts were bound to determine whether the subsequent grant defeated the earlier one, and both did so under the provisions of Magna Charta and the English constitution that would have governed the grants when they had been made.233 The judges in Bowman determined that: the plaintiffs could claim no title under the act in question, as it was against common right, as well as against Magna Charta, to take away the freehold of one man, and vest it in another; and that too, to the prejudice of third persons, without any compensation, or even a trial by a jury of the country, to determine the right in question. [The later act] was therefore, ipso facto, void.234

bankruptcy laws so long as they apply only prospectively to obligations made after the adoption of the regulation. Ogden v. Saunders, 25 U.S. 213 (1827). 229 See, e.g., Sadler v. Langham, 34 Ala. 311, 329-32 (1859) (“transfer of property by mere legislative edict, from one person to another”); Regents of the Univ. of Md. v. Williams, 9 G. & J. 365, 411-12 (Md. 1838) (invalidating statute taking property from Regents and giving it to another); Sherman v. Buick, 32 Cal. 241, 249-50 (1867) (due process provision of state constitution prohibits statute authorizing taking from a and giving to b); Bd. of Cnty. Comm’rs v. Carter, 1 Kan. 109, 123-29 (1863) (invalidating retroactive statute that would have transferred property from A to B); Townsend v. Townsend, 7 Tenn. (Peck) 1 (1821) (invalidating statute forcing creditors to accept devalued notes of certain banks in satisfaction of their debts); Turpin v. Locket, 10 Va. (6 Call) 113 (1804). On the opinions in Turpin, see generally H. JEFFERSON POWELL, A COMMUNITY BUILT ON WORDS: THE CONSTITUTION IN HISTORY AND POLITICS 85-95 (2002). 230 Marcy v. Clark, 17 Mass. 330 (1821) is a case where the court could have used law of the land in its vested rights meaning, but referred only to procedure. See also Rice v. Parkman, 16 Mass. 326; Wales v. Stetson, 2 Mass. 145 (1806) (giving doctrine of vested rights the same effect as Marshall later gave to the contract clause in Dartmouth College case); Holden v. James, 11 Mass. 396 (1814) (same). In New Hampshire, a court invalidated a special act for violating the state constitutional separation of powers provision. Merrill v. Sherburne, 1 N.H. 204 (1819); 1 Yeates (Pa.) 260 (1793) (separation of powers). See Williams, supra note [-], at 448 (“During this period [1770s-1780s], state and federal courts routinely ignored available law-of-the-land provisions in state constitutions in the course of striking down statutes that interfered with vested property rights, basing their decisions instead on natural law arguments or on other more specific provisions in state constitutions or in the federal Constitution.”); Corwin, supra note [-], at 371. 231 Kirby, Reports, 444 (Sup. Ct., Aug. term, 1785), cited in HAMBURGER, supra note [--] at 332 n. 5. 232 1 S.C.L. (1 Bay) 252, 245-55 (May 1792). 233 See generally HAMBURGER, supra note [--] at 331-336. 234 Bowman, 1 S.C.L. at 252.

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In the first fifteen years after the ratification of the U.S. Constitution, the Supreme Court considered the constitutionality of two confiscatory state acts.235 The Court did not apply the Fifth Amendment to the states, but it relied on the same separation of powers and jury trial reasoning that marked other early law of the land and due process controversies. It should be no surprise that the earliest articulation by the Supreme Court of the classic formula that a law that takes property from A and gives it to B violates the separation of powers came in an Ex Post Facto Clause case. In Calder v. Bull,236 a party that had lost a probate dispute on appeal to the Connecticut General Assembly argued to the Supreme Court that the legislature’s decision was an ex post facto law in violation of Article 1, section 10 of the United States Constitution. The Connecticut government operated under its 1662 charter until 1818, and under that charter the General Assembly operated as the highest judicial court, as well as being the legislature.237 Three of the four justices found that the General Assembly had acted pursuant to this traditional judicial power. If so, they decided, the ex post facto clause did not apply. The General Assembly reversed the probate court in an exercise of its judicial power under the Connecticut Charter; the act did not amount to a law, much less an ex post facto one.238 Justice Chase was not content to leave it at that. He offered a structural analysis examining the legality of the General Assembly’s act even on the assumption that it was legislative and not judicial in nature, based on some combination of the textual provisions of Article I, section 10 and what he called “general principles of law and reason.” The latter part of his analysis turns on the separation of powers, and specifically on the idea that “legislative” power is limited to the passage of general and prospective rules of conduct:: An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is 235 Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798); Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800) (upholding a state bill of attainder against a challenge that it violated the Georgia Constitution’s Jury Trial Clause when Georgia did not have a Bill of Attainder Clause and the bill was passed before the U.S. Constitution). 236 3 U.S. 386 (1789). 237 395. See Styles v. Tyler, 64 Conn. 432 (1894). Connecticut’s legislature was the highest court in the land under the Fundamental Orders of 1639, para. 10, the Charter of 1662, para. 7, and custom. See Christopher Collier, William J. Hammersley, Simeon E. Baldwin, and the Constitutional Revolution of 1897 in Connecticut, 23 Conn. L. Rev. 31, 37 (1990). 238 394. See also opinion of Justice Iredell, at 398.

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against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature may enjoin, permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.239 After considering the distinctions in principle between judicial and legislative authority, Chase turned to the prohibitions placed on the states by article 1 section 10. The prohibitions on bills of attainder and ex post facto laws, he argued, are of a piece.240 Though “legislative judgments” they are “an exercise of judicial power”241 where a legislature, among other things, “declar[e] acts to be treason, which were not treason, when committed”; “admit[] one witness, when the existing law required two”; “receiv[e] evidence without oath; or the oath of the wife against the husband”; or “they inflicted punishments, where the party was not, by law, liable to any punishment”; “and in other cases, they inflicted greater punishment, than the law annexed to the offense.”242 This is an attack on the “personal liberty” of the subject, meaning they could result in imprisonment. The other provisions of Article I, section 10 related to the rights of “property, or contracts.” 243 He summed up these provisions, prohibition state legislatures from authorizing paper money as legal tender and passing laws impairing the obligation of contracts as reflecting the principle that “[i]t is not to be presumed, that the federal or state legislatures will pass laws to deprive citizens of rights vested in them by existing laws; unless for the benefit of the whole community, and on making full satisfaction.”244 Chase’s dictum has often been cited as evidence of his willingness to go beyond the strictures of the written Constitution, and apply unwritten general principles of reason or natural law to state enactments, contrary to the Tenth Amendment, in the name of the United States Constitution. Certainly some of his language points in that direction. But on the whole, it is more persuasive to read his dictum regarding “general principles” as an explanation of the underlying logic of the Constitution’s provisions regarding separation of powers and the attendant limitations on state legislation. His opinion explains the 239 388-89. 240 389. 241 389. 242 389. 243 390. 244 [--].

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ways in which the federal constitution prohibits even state legislatures from exercising essentially judicial power to deprive subjects of property “rights vested in them by existing laws.” It is nearly indistinguishable from Tucker’s explanation of due process as the general principle that ties together the constitutional prohibitions on the exercise of quasi-judicial power by the federal legislature. Perhaps the most famous of the early state vested rights cases was Trustees of UNC v. Foy & Bishop.245 In 1789, the North Carolina legislature granted “all the property that has heretofore or shall hereafter escheat to the state” to the Trustees of the University of North Carolina. In 1800 the legislature prospectively repealed the statute, and declared that all properties that the university had been granted under the 1789 statute that it had not yet sold “shall from hence revert to the state, and henceforth be considered as the property of the same.”246 The trustees of the university sued, arguing that clawing back the unsold real estate violated the state constitution, as a “deprivation” of “property” “in violation of the law of the land.” Counsel connected this law of the land argument with one about eminent domain that sounded in separation of powers: when it is said that public necessity must precede [the legislature’s] power to affect the rights of private property, and that they have done so without such necessity, whether it did exist or not, must be determined by some other persons than themselves. Before the act is done, either by the intervention of a Jury, as in the case of public roads; or by some other known mode, recognized by the laws and constitution of this country: and after it is done by the opinion of those Judges who are appointed to watch over the constitution, and are sworn to reject all unconstitutional acts.247 … [The reversion act] appears to be a seizure without necessity, without cause, and without compensation; and is not justified by the right of eminent domain, belonging to sovereignty; because it has not observed the restriction to which that right is subjected.248 The State argued, on the other hand, made two chief arguments: (1) that as the creator of the corporation through charter, it necessarily had the power to destroy the corporation; and (2) the law of the land either did not apply to the legislature or did not apply to taking the property of corporations (as opposed to natural persons). Judge Locke, for the court, invalidated the law, apparently on two independent constitutional grounds, including the law of the land. The first ground was that the North Carolina Constitution directed the Legislature to create a public university. After doing so, the Legislature had no authority to directly destroy the University, or to indirectly destroy the University by taking its property. Alternatively, the law was invalid under the 245 5 N.C. 58 (1805). 246 Trustees of UNC, 5 N.C. at 81. 247 Trustees of Univ. of N. Carolina v. Foy, 5 N.C. 58, 66 (N.C. Conf. 1805). 248 Trustees of Univ of N.C., 5 N.C. at 66-67.

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state law of the land clause because it was an exercise of judicial power by the legislature. Judge Locke’s reasoning is typical of the separation of powers rationale given by other courts and commentators of the early republic. It is evident the framers of the constitution intended the [law of the land] provision as a restraint upon some branch of the government, either the Executive, Legislative, or Judicial. To suppose it applicable to the executive would be absurd on account of the limited powers conferred on that officer; and from the subjects enumerated in that clause, no danger could be apprehended, from the Executive Department, that being entrusted with the exercise of no powers by which the principles thereby intended to be secured could be affected. To apply it to the Judiciary, would, if possible, be still more idle, if the Legislature can make the “Law of the Land.” For the Judiciary are only to expound and enforce the law and have no discretionary powers enabling them to judge of the propriety or impropriety of laws. They are bound, whether agreeable to their ideas of justice or not, to carry into effect the acts of the legislature as far as they are binding or do not contravene the constitution. If then this clause is applicable to the legislature alone, and was intended as a restraint on their acts, (and to presume otherwise is to render this article a dead letter) let us next enquire, what will be the operation which this clause will or ought to have on the present question. It seems to us to warrant a belief that members of a corporation as well as individuals shall not be so deprived of their liberties or property, unless by a trial by Jury in a court of Justice, according to the known and established rules of decision, derived from the common law, and such acts of the Legislature as are consistent with the constitution.249 There was some disagreement among early court over whether the property rights of corporations were constitutionally protected,250 but the North Carolina court took the affirmative side of that dispute. The court noted that “the Trustees are a corporation established for public purposes,” “yet we conceive that circumstance will not make the property of the Trustees subject to the arbitrary will of the Legislature. The property vested in the Trustees must remain for the uses intended for the University, until the Judiciary of the country in the usual and common form, pronounce them guilty of such acts, as will, in law, amount to a forfeiture of their rights or a dissolution of their body.”251 The court’s definition of law of the land did limit the legislature, but it limited it from depriving specific persons of property without “a trial by Jury in a court of Justice” and 249 Trustees, 5 N.C. at 88. 250 See, e.g., Spencer Roane’s separate opinion in Turpin. 251 Trustees of Univ. of N. Carolina v. Foy, 5 N.C. 58, 88-89 (N.C. Conf. 1805). Judge Hall dissented, concluding that the law was constitutional because the Legislature had the authority as the branch assigned by the Constitution to create a University to judge the best way to provide for that University. He made no comment on the Trustees’ law of the land argument. Trustees of UNC, 5 N.C. at 89.

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without “the known and established rules of decision, derived from the common law, and such acts of the Legislature as are consistent with the constitution.” This is not akin to modern substantive due process. This is an individual right to deprivation of rights only in accordance with the separation of powers. One antebellum opinion stands out for its subtle account of how the application of due process of law to the legislature is based upon separation of powers principles. It also illustrates the difficulty of determining whether an act is general and prospective. In Hoke v. Henderson,252 the North Carolina Supreme Court invalidated a statute that had the effect of divesting county clerks of their jobs, invoking both the law of the land and separation of powers clauses of the state constitution. Chief Justice Ruffin, writing for the court, began his analysis by comparing the power of Parliament with that of the North Carolina legislature. The former “decides questions of private right” and puts those decisions “into the form of a statute.” It can adjudicate and often does substantially adjudicate, when it professes to enact new laws. That faculty is expressly denied to our Legislature, as much as legislation is denied to our Judiciary. Whenever an act of the Assembly therefore is a decision of titles between individuals, or classes of individuals, although it may in terms purport to be the introduction of a new rule of title, it is essentially a judgment against the old claim of right: which is not a legislative, but a judicial function. It may not be easy to distinguish those powers and to define each, so that an act shall be seen at once to be referable to the one or the other. But I think, that where a right of property is acknowledged to have been in one person at one time, and is held to cease in him and to exist in another, whatever may be the origin of the new right in the latter, the destruction of the old one in the former is by sentence. If the act of [under scrutiny] had been confined in its terms to the clerkship of Lincoln, its judicial character would be obvious. Ruffin then addressed the argument that this was a general and not a special act of legislation because it did not name any particular clerk, but rather applied equally to every clerk in every county of the state. It certainly in that light is wanting in the precision and direct operation usually belonging to, and distinguishing judicial proceedings. But nevertheless it partakes of that character in its operation on the former officers. If valid, it compels the courts to deprive the officers without further enquiry before a jury, into the fact or legal sufficiency of any cause of forfeiture or removal. If the Legislature cannot itself adjudge a forfeiture directly; still less it would seem, ought they to command the courts to remove without any cause whatever. Nor does the extension of the sentence of expulsion to all the Clerks in the State vary its character in this respect. 252 15 N.C. 1 (1833).

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The provision is not that of a law prescribing a rule of property, or modifying the extent of interest or the tenure prospectively, of which these offices shall be susceptible, or declaring that all property in them shall cease by the abolition of the offices themselves; but it is a provision, by which the office, preserved in the law and still regarded as the subject of property, is taken, and merely taken from one man and given to another. The only sense in which that transaction cannot be called judicial is, that no court of justice could have pronounced the judgment under the existing laws upon the state of facts in this case. To have authorised such a sentence by a court, further legislation would have been necessary. It is true then, that the act is not purely judical [sic]. But this is all that can be said in support of it. It is certainly as true that it is not purely legislative; for it leaves the nature of the office as it was, in duties, powers, privileges and emoluments, and confers it on one person, as a lucrative place, after taking it from the former possessor, who was before the acknowledged owner.253... A determination of conflicting rights between two classes of persons is a judicial act, although pronounced in the form of a statute. ... Creating a right or conferring it on one, when not already vested in another, is legislation. So prescribing the duties of officers, their qualifications, their fees, their powers and the consequences of a breach of duty, including punishment and removal, are all political regulations, and fall within the legislative province. But to inflict those punishments, after finding the default, is to adjudge; and to do it, without default, is equally so and still more indefensible. The Legislature cannot act in that character; and therefore, although their act has the forms of law, it is not one of those laws of the land, by which alone a freeman can be deprived of his property.254 Justice Ruffin’s separation of powers argument may have been especially forceful, but many other jurists applied it in less rigorous forms to invalidate special or retrospective legislative acts throughout the nineteenth century. b. An act that physically deprives A of land for public use without compensation Customarily, in Britain, the power of eminent domain was exercised by Parliament through special acts – laws specifying particular property to be taken for a public use – with just compensation. The compensation in effect satisfied due process concerns because provision of equivalent value obviated any deprivation. 255 It was not until the 1770s that Parliament authorized the executive to exercise eminent domain for the 253 12-14. 254 Hoke v. Henderson, 15 N.C. 1, 14-16 (1833) (Ruffin, C.J.). 255 See, e.g., Blackstone, 1 Commentaries 138-39. See also Vattel, Law of Nations, bk. 1, chap. 20, secs. 244-46.

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purpose of building highways, with the approval of two justices and the right of jury trial on amount of compensation.256 The practice in the colonies, too, was to provide for compensation through the political process either by statute or by jury trial.257 At the same time, only two colonial charters guaranteed just compensation for a taking;258 otherwise, it was not required by law, but merely customary and left up to the political process.259 When just compensation became a constitutional requirement of the exercise of eminent domain in the Fifth Amendment Takings Clause (and in the Massachusetts and Vermont Constitutions),260 it added a procedural protection for government deprivations of a specific kind of property right: physical possession of real property.261 Through the nineteenth century, courts always held that the power of eminent domain applies to physical deprivations of property, not to general regulations that impair the use of property.262 The requirement of just compensation had two points. One was to nullify the “deprivation” aspect of the taking. The deprivation became an exchange to which the landowner was deemed to have consented.263 The second was procedural and it sounded in separation of powers: the assessment of the value of the property had to be made by an institution other than the legislature, either a commission (with the consent of the landowner) or a jury of the vicinity.264 In states without a Just Compensation Clause, a number of courts interpreted their state Law of the Land Clauses, which allowed the government to deprive persons of rights 256 McDonald, supra note [--] at 22. 257 William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 787 (1995). 258 Massachusetts Body of Liberties sec 8 (1641), reprinted in Sources of Our Liberties: Documentary Origins of the Individual Liberties in the United States Constitution and Bill of Rights 148, 149 (Richard L. Perry & John C. Cooper eds., 1952) (requiring “reasonable prices and hire” for public use of “Cattel or goods” and “suffiticnt[] responcence[] if the Cattle or goods shall perish or suffer damage”); Fundamental Constitutions of Carolina, art. 44 (1669) (“The damage the owner of such lands (on or through which any such public things shall be made) shall receive thereby shall be valued, and satisfaction made by such ways as the grand council shall appoint.”). 259 William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 787 (1995). 260 Vt. Const. of 1777, ch. I, art. II, reprinted in 6 The Federal and State Constitutions at 3737, 3740 (“whenever any particular man’s property is taken for the use of the public, the owner ought to receive an equivalent in money.”); Mass. Const. of 1780, part I, art. X, reprinted in 3 The Federal and State Constitutions, at 1888, 1891 (“whenever the public exigencies require that the property of any individual should be appointed to public uses, he shall receive a reasonable compensation therefore”). See also Northwest Ordinance of 1787, art. 2, reprinted in Sources of Our Liberties, at 392, 395 (“[S]hould the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same.”). 261 Unlike in Pennsylvania Coal v. Mahon. 262 William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 787 (1995); Stephen A. Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and “Takings” Clause Jurisprudence, 60 S. CAL. L. REV. 1, 76 (1986). 263 See, e.g., Blackstone, 1 Commentaries 138-39. See also Vattel, Law of Nations, bk. 1, chap. 20, secs. 244-46. 264 See Vanhorne’s Lessee v. Dorrance, 28 F. Cas. 1012 (C.C.D. Pa. 1795) (No. 16,857) (Paterson, J.).

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only by “the law of the land or by a judgment of peers,” to require just compensation determined by a jury trial.265 Interestingly, this was first done by judges in South Carolina, one of only three states (with North Carolina and Massachusetts) that had had a colonial charter providing for just compensation; this may explain why South Carolina and later North Carolina judges thought that the requirement was part of the “law of the land” as opposed to a doctrinal innovation.266 Most prominently, in Dash v. Van Kleek, James Kent interpreted the New York constitutional law of the land clause to require adequate compensation for takings.267 Kent’s reasoning was similar to the Supreme Court’s subsequent holding that Fourteenth Amendment Due Process Clause requires states to compensate for taking property.268 Perhaps somewhat surprisingly, that decision—as a due process decision irrespective of the incorporation of the Takings Clause against the states—corresponds with the separation of powers logic that supported early law of the land and due process decisions. 3. An act that revises a charter or revokes a land grant We have already seen that British and American Whigs before and during the Revolution thought that Parliament violated due process when it altered the East India Company’s Charter and the Massachusetts government. The point was that Parliament could not act like a court by passing a special bill that deprived a certain party of rights without providing basic common law procedures such as notice and a hearing. When states separated the judicial from the legislative powers, the same logic meant that state legislatures wholly lacked the power to alter charters. In the first decade of the 1800s James Kent and Justice Livingston sat on the New York Council of Revision. The Board’s task was to review proposed legislation for constitutionality. During Kent’s tenure the Council twice found that a proposed act to change a corporate charter would violate the state constitution—the second time the Council explicitly said it would violate due process. In 1803 the Council, which included Justice Livingston, considered a bill that would have enlarged the number of wards in New York City from seven, which was provided in the city charter, to nine. It would have gone into operation without “the consent of the mayor, aldermen and commonality of the city.” Kent, for the Council, concluded that the revision, without consent, would be a breach of the Crown’s covenant 265 Lindsay v. Commissioners, 1 S.C.L. (1 Bay) 382 (Ct. Com. Pl. 1794). See, e.g., Dash v. Van Kleek, 7 Johns. 477 (Sup. Ct. N.Y. 1811); Brown v. Hummel, 6 Pa. 86, 91 (1847) (invalidating statute divesting trustees of a charitable corporation of their offices as an unconstitutional deprivation of property in violation of the state constitution’s law-of-the-land provision); Parham v. Justices, 9 Ga. 341, 348-55 (1851) (Georgia’s constitution incorporates Magna Charta’s law-of-the-land provision, which prohibits legislative taking without compensation); Norris v. Doniphan, 61 Ky. (4 Met.) 346-357-61 (1863) (federal statute emancipating family members of former slaves who enlisted in the Union army deprived slaveholders of property without due process of law in violation of the Fifth Amendment). 266 Lindsay v. Commissioners, 1 S.C.L. (1 Bay) 382 (Ct. Com. Pl. 1794). 267 7 Johns. 477 (Sup. Ct. N.Y. 1811). 268 B. & Q. R.R. Co. v. Chicago, 166 U.S. 226 (1897) (overruling Davidson v. New Orleans, 96 U.S. 97 (1877)).

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with the city, which guaranteed that its provisions would “be valid and effectual” “notwithstanding any statute of Parliament, or any act of Assembly.” Without appealing to any specific text of the New York Constitution, he advised against the act as a “dangerous precedent” because “if the alterations contained in the said bill can be made without the consent of the corporation, the charter may with equal right be altered in other particulars, and may even be destroyed whenever it shall seem meet to the Legislature. And not only this, but every other charter, and every grant from government can be altered or resumed at pleasure, for they all rest upon the same foundation.” 269 The General Assembly declined to enact the bill. Four years later the Council considered a bill that would have altered Columbia College’s charter. The bill would have shifted power to fill a vacant trustee seat from the trustees, as the Charter provided, to the regents, without the College’s consent. The Council noted that “the right in question has received the repeated and explicit sanction of government [through original charter, constitutional provisions, and statute] and it has thereby acquired all the security which any grant or chartered right can receive under the Constitution and the law of the land.” This time the Council was clear: the bill would violate due process of law. Governor Lewis, writing for Chief Justice Kent and Justice Thompson: It is a sound principle in free governments, and one which has received frequent confirmation by the acts of the Legislature, that charters of incorporation, whether granted for private or local, or charitable, or literary or religious purposes, were not to be affected without due process of law, or without the consent of the parties concerned. Kent said that perhaps an abrogation of the charter could be justified “by some strong public necessity,” but “no such necessity is presumed to exist in the present case.”270 The separation of powers logic also makes sense of the first Supreme Court decisions to invalidate a state act under the Contract Clause, Fletcher v. Peck.271 Under the influence of bribes, the Georgia legislature had sold most of what is now Alabama and Mississippi for pennies an acre. The next year the legislature repealed the grant. Peck later acquired some of the land and sold it to Fletcher, who sued him for breach of covenant title because the grant had been repealed. The Court invalidated the act revoking the land grant as an interference with the state’s contract with the buyers, as a violation of either “general principles which are common to our free institutions, or [] the particular provisions of the constitution of the United States.”272 Chief Justice Marshall,

269 The Council of Revision of the State of New York 423-25 (1859) (March 8, 1803). 270 The Council of Revision of the State of New York 344-45 (1859) (April 3, 1807). 271 10 U.S. (6 Cranch) 87 (1810). 272 Id. at 139.

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writing for the Court, determined that “when absolute rights have vested,” under a statutory grant, “a repeal of the law cannot devest those rights.”273 To the legislature, all legislative power is granted; but the question, whether the act of transferring property of an individual to the public, be in the nature of the legislative power, is well worthy of serious reflection. It is the peculiar province of the legislature, to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.274 It is unclear which constitutional provision Marshall thought the repeal act violated. Perhaps he perceived the act to be a quasi-judicial ex post facto law, but could not invalidate it on that ground because the Court had already determined that the Ex Post Facto Clause did not apply to civil laws.275 The Contract Clause seems like the most obvious choice. He established in the opinion that a grantor implicitly promised not to revoke the grant, constituting a binding contract that would have “impaired the obligation of [that] contract” in violation of the Contracts Clause. The problem is that the Contracts Clause applies to “laws” that impair the obligation of contracts. We think that Marshall was interpreting “laws that impair the obligation of contracts” to include quasijudicial acts, just as Justice Chase had interpreted “Ex Post Facto Laws” to include quasijudicial acts. In that case, Marshall’s reasoning aligns with the separation of powers logic that underpinned the early due process and law of the land decisions: the legislature could not retroactively deprive persons of property rights because that was for a court to do, pursuant to general and prospective law. If there were reason to doubt the validity of the bribery-induced grants, that was a matter for judicial examination. Daniel Webster’s argument in Trustees of Dartmouth College v. Woodward was even more paradigmatic of due process as separation of powers logic.276 Webster argued that an act of the New Hampshire legislature that divested one named corporation, the Trustees of DartmouthCollege, of its rights pursuant to a royal charter violated the state constitutional law of the land clause by depriving the corporation and its trustees of property without “judgement of [their] peers or the law of the land.” Webster first argued that the corporation and its trustees had property rights that were protected by the law of the land clause. Webster argued that the act infringed the thirty-seventh article of the New Hampshire Constitution, which provided that the powers of government shall be kept separate. 273 Id. at 135. It is unclear whether Marshall meant that Georgia lacked the power to revoke the grant under general principles notwithstanding the Constitution. See David Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, 13132 (1985). 274 10 U.S. (6 Cranch) at 136. 275 See Calder v. Bull. 276 17 U.S. (4 Wheat.) 518 (1819). AKHIL R. AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 282-83 (1998) (similar reasoning in Bolling v. Sharpe and Webster’s 1819 Trustees of Dartmouth College argument); see Shirley, Dartmouth College Causes, 2 SO. L. REV. N.S. 22 and 246.

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By these acts, the legislature assumes to exercise a judicial power. It declares a forfeiture, and resumes franchises, once granted, without trial or hearing. If the constitution be not altogether waste-paper, it has restrained the power of the legislature in these particulars. If it has any meaning, it is that the legislature shall pass no act directly and manifestly impairing private property and private privileges. It shall not judge by act. It shall not decide by act. It shall not deprive by act. But it shall leave all these things to be tried and adjudged by the law of the land.277 Webster passes directly from this argument based on the separation of powers provision of the state constitution to his argument based on fifteenth article of the state constitution, which provided that no one shall be deprived of “property, immunities, or privileges, but by the judgement of his peers or by the law of the land.” The New Hampshire court had admitted that the property rights of the corporation and trustees were privileges protected under the law of the land clause, but had said that it was difficult to know whether the legislative act under question was a “law of the land.” Webster’s reply, which has been cited as a “substantive” interpretation of the law of the land, or due process of law, was essentially an elaboration of the principle of the separation of powers applied to a legislature that lacked the power to issue a judicial sentence. We quote at length because Webster’s argument in many respects sums up our own thesis here. Are, then, these acts of the legislature, which affect only particular persons and their particular privileges, laws of the land? Let this question be answered by the text of Blackstone. And first it (i e. law) is a rule: not a transient, sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law; for the operation of this act is spent upon Titius only, and has no relation to the community in general — it is rather a sentence than a law. "I Lord Coke is equally decisive and emphatic. Citing and commenting on the celebrated twenty-ninth chapter of Magna Charta, he says: "No man shall be disseized, &c., unless it be by the lawful judgment, that is, verdict of equals, or by the law of the land, that is (to speak it once for all), by the due course and process of law. "Have the plaintiffs lost their franchises by " due course and process of law ? On the contrary, are not these acts particular acts of the legislature, which have no relation to the community in general, and which are rather sentences than laws? By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders 277 Dartmouth College (Webster).

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judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Every thing which may pass under the form of an enactment is not therefore to be considered the law of the land, If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees, and forfeitures in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general, permanent law for courts to administer or men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare the law or to administer the justice of the country. I I Is that the law of the land, " said Mr. Burke, I I upon which, if a man go to Westminster Hall, and ask counsel by what title or tenure he holds his privilege or estate according to the law of the land, he should be told, that the law of the land is not yet known; that no decision or decree has been made in his case; that when a decree shall be passed, he will then know what the law of the land is? Will this be said to be the law of the land by any lawyer who has a gown left upon his back, or a rag of a wig with one tie upon his head? Webster’s use of Blackstone and Burke is telling. Both of those eminent British authorities agreed on the definition of a law and the distinction between a law and a judicial sentence. Where they would have disagreed, as Webster knew and omitted as irrelevant to his argument, was whether Parliament had unlimited power to enact judicial special laws that were effectively judicial sentences without due process of law. Webster’s argument was that the New Hampshire Constitution, by separating the judicial from the legislative power, had decided that question in the negative. So too, had the federal constitution. Chief Justice John Marshall decided the case on the grounds of the Contract Clause, and not the Due Process Clause (which did not apply to the states), but his rationale tracked Webster’s.278

C. The Exceptions: Wynehamer and Dred Scott There are only two antebellum cases that go beyond these traditional, and limited, understandings of due process. The typical vested rights case involved a special legislative 278 See also 17 U.S. at 327 (opinion of Story, J.) (the royal charter provided that donations to the corporation would be administered by the trustees for the purpose of the corporation without interference by the Crown, unless “taken away by due process of law,” which Story interprets to mean “without the consent of the corporation”); at 334 (Story, J.) (each trustee has an individual legal interest in his office “and it cannot be divested but by due course of law”).

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act that on its face purported to completely deprive specific persons of title to property. In Wynehamer v. People279 and Dred Scott v. Sanford,280 however, courts invalidated generally applicable laws that purported merely to regulate how owners could use certain kinds of property. The laws diminished the value of the same kind of property, no matter who held it, but they did not completely deprive specific persons of property through an act that operated like a judicial sentence. The courts strayed from the separation of powers principles underpinning the application of due process to the legislatures and their conclusions on due process were inconsistent with the historical understanding of due process. In Wynehamer v. People, the New York Supreme Court invalidated a statute prohibiting the sale of liquor on the ground that it effectively deprived liquor owners of their property without compensation or judicial process in violation of the law-of-theland and the due process clauses of the state constitution.281 Likewise, in Dred Scott v. Sanford,282 Chief Justice Taney, writing for the United States Supreme Court, notoriously determined that a federal statute that purported to free slaves taken into free territory would thereby deprive slave owners of their property without due process of law in violation of the Fifth Amendment.283 Wynehamer and Dred Scott were radical departures from prior due process cases, in two respects. First, the decisions effectively treated particular property rights as inviolable, even as affected by general and prospective laws. The laws were general because they applied to all persons holding certain common species of property – unlike earlier takings cases, where certain property holders were singled out for deprivations. In effect, the decisions held that once a person acquired property in liquor or a slave, the government could not change its mind and prevent certain future uses of that type of property. Dred Scott is a step more radical than Wynehamer in this respect, since it seems to hold that a person who owns something regarded as property in one jurisdiction has a right to take that property into another jurisdiction, where it is not regarded as property, and hold it as property. Second, Wynehamer involved limitations on the use of property, rather than direct transfer of title from one person to another or to the state. They thus seem to anticipate the regulatory takings doctrine of Pennsylvania Coal Co. v. Mahon.284 The decisions seem to us, as they have to most commentators, aberrational and incorrect under then-applicable principles. But radical as they were, Wynehamer and Dred Scott do not go as far as modern substantive due process cases go. The rights protected in those cases had their origin in positive law. The courts held that the positive rights involved in those cases, once vested, could not be taken away. They did not hold that every jurisdiction had to allow the sale and consumption of alcoholic beverages or the ownership of slaves. Modern substantive due process goes that additional step – to hold 279 13 N.Y. 378 (1856). 280 60 U.S. 393 (1857). 281 Id. at [---]. 282 60 U.S. (19 How.) 393 (1856). 283 Id. at [---]. 284 cite

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that all people in all jurisdictions have the right to do something positive law had never permitted. Both Wynehamer and Dred Scott were immediately controversial and had no enduring positive impact on due process doctrine.285 At least three other states that accepted the vested rights doctrine nonetheless upheld prohibition statutes similar to the one struck down in Wynehamer.286 And Taney’s opinion in Dred Scott met with immediate and enduring scorn.287 Radical abolitionists and radical defenders of slavery entertained mirror-image interpretations of due process, neither of which was orthodox in antebellum American law. Abolitionists maintained that every person was born free, with an ownership of his or her own body, and that no law passed by the legislature could take that liberty and property away.288 Defenders of slavery maintained that slaves were property, a vested right, which could not be taken away. The logical implication of these positions was that the entire nation had to be either free or slave. The actual antebellum constitution, however, left the slavery question to the several states.289 It rested on the principle of Sommersett’s Case, that a person could lawfully be held in slavery only by the force of positive law.290 Even the American Anti-Slavery Society, for example, passed a resolution that “We fully and unanimously recognize sovereignty in each state to legislate exclusively on the subject of slavery which is tolerated within its limits.”291 Although a strong version of natural rights theory would have supported a more radical abolitionist position, the United States Constitution did not contain a provision embodying that theory. Instead, it had a Due Process Clause, which protects liberty but only against deprivation without due process of law. Contrary to both radical abolitionists and defenders of slavery, the Due Process Clause allowed the legislature to impair natural liberty, as well as property, by means of properly executed and enforced general and prospective laws. The Civil Rights Act of 1866 and the Civil War Amendments were meant to repudiate the Constitution’s previous sanction of slavery, and to ensure that states would

285 See, e.g., Williams, supra note [--] at 468-69; JOHN HART ELY, DEMOCRACY AND DISTRUST 18 (Wynehamer and Dred Scott were “aberrations neither precedented nor destined to become precedents themselves”); DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS 382 (1978). 286 See, e.g., Fisher v. McGirr, 67 Mass. (1 Gray) 1 (1854); State v. Gallagher, 4 Mich. 244 (1856); Lincoln v. Smith, 27 Vt. 328 (1855). 287 HARRISON, supra note [--], at 554. 288 See, e.g., Randy E. Barnett, Was Slavery Unconstitutional Before the Thirteenth Amendment? Lysander Spooner’s Theory of Interpretation, 28 Pac. L. Rev. 977 (1997). See generally Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, 3 J. Legal Analysis 165 (2011). 289 See Michael McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?, 25 Loy. L.A. L. Rev. 1159, 1173-74 (1992). 290 Rex v. Knowles, es parte Somersett (K. B. 1772) 20 State Tr 1; PAUL FINKELMAN, AN IMPERFECT UNION: SLAVAERY, FEDERALISM, AND COMITY (2000). 291 cite

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treat all persons on the same terms.292 The statements of Representative Bingham and others during the legislative debates on the Fourteenth Amendment clearly express this view. Several of Bingham’s statements suggest that he believed that the Due Process Clause alone might have prohibited the institution of slavery by establishing inviolable individual rights derived from natural law.293 Scholars note that a handful of abolitionists (unsuccessfully) advanced a sort of natural law constitutionalism,294 but when antislavery congressmen had the opportunity they quickly secured the right through a constitutional amendment--the Thirteenth--that rendered a natural law argument superfluous. Bingham’s position was widely advanced neither by the Thirty-Ninth Congress nor in the ratification debates, nor was it the core of his own position on the meaning of due process. When another representative asked him the meaning of the clause, he replied that “the courts have settled that long ago, and the gentleman can go and read their decisions.”295 Besides a few stray statements, there is little in the legislative or ratification history of the Fourteenth Amendment to suggest that it was understood to operate against states any differently than due process clauses had since the early days of the republic.296

292 See Akhil Reed Amar, The Bill of Rights 171 n. * (“This first sentence of the Fourteenth Amendment consciously overruled Dred Scott’s holding that blacks could never be ‘citizens.’”); see generally Michael W. McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition? 25 LOY.-L.A. L. REV. 1159, 1173-75 (1992). 293 See Cong. Globe, 39th Cong., 1st Sess. 1994 (1866) (“due process of law” includes “law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal, exact justice; that justice which requires that every man shall have his right; that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations”). 294 See Williams 472-3 (citing Theodore Dwight Weld, The Power of Congress Over the District of Columbia 37 (4th ed., New York, The American Anti-Slavery Society 1838). See generally Williams 472-75 (recounting due process arguments made by antebellum politicians). See also RandyE. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, 3 J. L. Stud. 165 (2011). 295 Cong. Globe, 39th Cong., 1st Sess. 1089 (1866). See generally Williams, supra note [--], at 479-81. See Michael W. McConnell, The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition? 25 LOY.-L.A. L. REV. 1159 (1992). 296 Mr. Williams argues that late nineteenth century treatises--especially Thomas M. Cooley’s influential treatise on constitutional law--espoused a “substantive” version of due process. See Williams, supra note [--] at 493-94 (citing Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (Little, Brown & Co. 1868). Cooley’s understanding of due process in 1868 seems to be consistent with the understanding exhibited by the late eighteenth and early nineteenth century state and federal court cases we have canvassed. In fact, it is notable (though not noted by Williams) that in Cooley’s first sustained treatment of “the law of the land,” he asserts that a legislature has never been assigned the power to take from A and give to B, irrespective of whether there is a constitutional law of the land clause, because the legislature can neither function like a court nor act arbitrarily. The bills of rights in the American constitutions forbid that parties shall be deprived of property except by the law of the land; but if that prohibition had been omitted, a legislative enactment to pass one man’s property over to another would nevertheless be void. If the act proceeded upon the assumption that such other person was justly entitled to the estate, and therefore it was transferred, it would be void, because judicial in its nature; and if it proceeded without reasons, it would be equally void, as neither legislative nor judicial, but a mere arbitrary fiat. There is no difficulty in saying that any such act, which, under pretence [sic] of exercising one power is usurping a power which the people, if they have not granted it at all, have reserved to themselves.

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In sum, there is little evidence that the Fourteenth Amendment was understood to mean anything different than due process had meant in 1791. It was neither understood to apply against legislatures in a different way than Fifth Amendment Due Process had been understood by many at the founding to apply against Congress; nor was it understood to be a source of life, liberty, or property rights, nor to protect unenumerated or inviolable rights. It was about the process by which the government may deprive one of rights that were otherwise protected by law. III. APPLYING DUE PROCESS AS SEPARATION OF POWERS [Omitted]

Cooley, Treaties at 174. Note, however, that there may be a seed of rational basis review of legislation in Cooley’s caveat that “a legislative enactment” “proceeded without reasons” “it would be … void, as neither legislative nor judicial, but a mere arbitrary fiat.” He gave no example to support this assertion. See also TIMOTHY FARRAR, MANUAL OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA (Boston, Little, Brown & Co. 1867); JOHN NORTON POMEROY, AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE UNITED STATES (New York, Hurd & Houghton 1868); GEORGE W. PASCHAL, THE CONSTITUTION OF THE UNITED STATES DEFINED AND CAREFULLY ANNOTATED (W.H. & O.H. Morrison, Law Booksellers 1868).

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