As they seek to refine their method, originalists should pay more attention to the contemporaneous construction put on the Constitution.
On the Originalism blog, Michael Ramsey and Andrew Hyman responded to my post for Law and Liberty on the original understanding of substantive due process. Hyman disputes the definition of “liberty” I provided and asserts a different definition of “due process of law” in the Fifth Amendment, while Ramsey asks for more evidence that the definition of “liberty” given wasn’t unique to Thomas Jefferson.
First let me address the problems of Hyman’s interpretation of “due process of law,” and the ways in which it hinders a proper understanding of liberty.
He incorrectly equates “due process of law” with “statutory authorization.” Considering the words alone, this might be a plausible meaning; but we must also consider the history of the phrase “due process of law” and how it came to be derived from Magna Carta’s “by the law of the land.”
The phrase “by the law of the land” didn’t refer just to statutes passed by Parliament. It also referred to the common law—especially the process of writs by common law courts. This became clearer as “law of the land” was replaced with “due process of law.” The Liberty of the Subject Act (1354) required that before people could be punished they had to be “brought in answer by due process of the law.” The “brought in answer” part clearly linked the phrase “due process of law” to the process of presentment or indictment before a common law court.
Sir Edward Coke, perhaps the greatest of the English jurists, was considered authoritative by early American courts as to the meaning of the common law, and specifically the “due process of law.” Coke interpreted the words “law of the land” and “due process of law” to mean “by indictment or presentment . . . in due manner, or by writ [original] of the Common law.” Parliament also recognized this meaning when it abolished the Star Chamber, citing that “none shall be taken by petition or suggestion made to the King or to his Council, unless it be by indictment or presentment . . . in due manner or by process made by writ original at the common law.”
This meaning of “due process of law” and “law of the land” was understood and applied by early American courts. For instance, the North Carolina Supreme Court in Hoke v. Henderson (1833) held:
[S]uch legislative acts, as profess in themselves directly to punish persons or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode and usages of the common law as derived from our forefathers, are not effectually “laws of the land,” for those purposes.
St. George Tucker, in his American edition of Blackstone’s Commentaries (1803), explicitly linked the “due process of law” in the Constitution’s Fifth Amendment to this meaning. And in 1833, Justice Story read the phrase in the Fifth Amendment as meaning “without due presentment or indictment, and being brought in to answer thereto by due process of the common law.” Due process of law described the process of adjudication by courts of law starting with indictment or presentment—not merely statutory authorization of the executive.
Guided by the concept of “due process of law” as described above, it makes no sense to define “liberty” as “unobstructed action according to our will” without considering the equal rights of others. That would mean that before a person is presented to a court for punishment, his or her right to murder or harm others could not be prevented by the legislature. Such a meaning would abolish almost all laws of government.
The rights safeguarded by the Fifth Amendment’s Due Process Clause are precious things worthy of constitutional protection. The idea that the right to murder or to commit other such wrongful acts was thought by the Founders to be worthy of constitutional protection is just silly.
Moving now to Hyman’s question about liberty: Yes, you can be deprived of it by “due process of law.” Visit any penitentiary and you will see people who have lost their liberty. Every time the sentence of capital punishment is carried out by the government, a person’s life has been taken by law. Only through a court of law can life or liberty be taken as punishment for the harm that that person has caused to the rights of others.
Regarding the last of Hyman’s questions, I would ask him what exactly he means when he says that Presidents and Governors could “stop” those harming the rights of others? Does he mean they could imprison those they believe are violating the rights of others? That would surely take away those persons’ liberty of movement—moving outside of a jail cell harms no other person—and therefore could only be done through a court of law. But if he means that the police, without having specific statutory authorization, could stop a person who is beating another person, then yes, they could and should; that’s the most literal definition of “police power.”
Let me directly make the case for defining liberty as I did, supporting that definition—as I was asked to do—with more than a single quote from Thomas Jefferson.
What I wrote about the Anglo-American definition of “liberty” wasn’t unique to Jefferson. The Fifth Amendment’s Due Process Clause derives from Magna Carta. The word “liberty” in the Due Process Clause comes from the requirement in Magna Carta that “No Freeman shall . . . be disseised of his . . . Liberties . . . but by lawful judgment of his Peers, or by the Law of the Land.” But what does this word “liberties” mean in Magna Carta? Coke described one part of the meaning this way:
[Liberties protected by Magna Carta] [signifies] the [freedoms], that the Subjects of England have; for example, . . . it was adjudged that [an] ordinance was against Law, because it was against the Liberty of the Subject, for every Subject [has freedom] to put his clothes to be dressed by whom he will. . . . [I]f a [grant] be made to any man, to have the sole making of Cards, or the sole dealing with any other trade, that [grant] is against the liberty, and [freedom] of the Subject, that before did, or lawfully might have used that trade, and consequently against this great Charter. Generally all monopolies are against this great Charter, because they are against the liberty and [freedom] of the Subject, and against the Law of the Land.
Coke’s view of Magna Carta ultimately culminated in Bonham’s Case (1610). Parliament had given the Royal College of Physicians the power to imprison, indefinitely, those they judged had practiced medicine without a license. Coke decided that this “flew in the face of the common law assumption that to practice medicine one needed only the consent of the patient” and so “the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void.”
Bonham’s Case was controversial in England for repudiating parliamentary sovereignty in favor of Magna Carta, but in the American colonies it was cited quite often as a reason for the colonists to oppose Parliament. For instance, when Parliament enacted the Stamp Act in 1765, the Massachusetts General Assembly declared “the Act of Parliament is against Magna Charta, and the natural rights of Englishmen, and therefore, according to Lord Coke, null and void.”
Coke’s understanding of Magna Carta and the liberty of Englishmen was widely shared among the other English common law jurists—but not his view of the limits of Parliament’s powers, which he expressed in Bonham’s Case. The other English jurists agreed with Coke as to the meaning of Magna Carta but they believed that Parliament could overturn or abrogate it.
For instance, the other English jurist most important to the American Founders, Sir William Blackstone, described liberty this way:
Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the [public]. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty.
While Blackstone held that Parliament had the authority to change the unwritten constitution of England (including Magna Carta), it is notable that colonial Americans, when they went to cite Blackstone, most often quoted his statements about the legal supremacy of natural justice.
Thomas Jefferson was making the same distinction as Blackstone did between natural liberty—constrained only by the laws of nature—and civil liberty—properly limited by the kind of law that “restrains a man from doing mischief to his fellow citizens.” Both of them recognized that any statute that restrains natural liberty, but not for the purpose of preventing “a man from doing mischief to his fellow citizens,” is tyranny and destructive of liberty of all kinds.
Justice Thomas, in his dissent in Obergefell v. Hodges (2015), wrote that “liberty” is “likely” the basic fact of not being imprisoned; but even he recognized the long historical support for the definition of liberty I have outlined here. The narrow definition of liberty offered by Justice Thomas seems incompatible with the Constitution’s preamble, which proclaims the document’s purpose to be to “secure the Blessings of Liberty to ourselves and our Posterity.” The word liberty here must mean so much more than mere lack of imprisonment.
Likewise when James Madison declared that “In Europe, charters of liberty have been granted by power. America has set the example and France has followed it, of charters of power granted by liberty.” Or when Benjamin Franklin reminds us that “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” How can it be correct in this context to understand liberty as meaning only that one is not under lock and key?
Look also at the way liberty is used in the state constitutions of the time. The Maryland Constitution of 1776 seems to use it in a context broader than imprisonment or non-imprisonment when it declares that the right of the people to vote is the best “security of liberty” and that ex post facto laws are “incompatible with liberty.” The North Carolina Constitution of 1776 declares that general warrants and standing armies are “dangerous to liberty” and that the freedom of the press is “one of the great bulwarks of liberty.” None of these can possibly be considered to fit into a conception of liberty merely as non-imprisonment.
Originalists should recognize the consistent view of the common law courts and the Founders, which was that the meaning of liberty included the right to do all those acts which are not harmful to others.