Perhaps a better constitution would be what Lash proposes, with less opportunity for mischief by judges, but that is not the Constitution we have.
During a recent trip to the National Archives, I saw one of the earliest known copies of Magna Carta in existence. And I remembered one of my favorite parts of Magna Carta, the “Law of the Land” clause:
No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.
This pronouncement, that neither life, liberty, nor property can be taken except by the “judgment of his peers or by the law of the land,” is the constitutional predecessor of our Due Process Clause. This also served as a basis for some notion of judicial review. Some argue that this history provides for a substantive component of law, rather than a mere procedural aspect.
But a related thought occurred to me. What is the significance that our Supremacy Clause in Article VI, authored several years before the Due Process Clause was added, uses the phrase “Law of the Land”?
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Most of the scholarship on the original understanding of the Supremacy Clause focuses on the word “Supreme” or “in pursuance of.”
However, the debates around the constitutional convention with respect to the Supremacy Clause were grounded in terms of judicial review. This provision of the Constitution was seen as a means to give the judiciary a negative on state laws that violated the national laws.
Alison LaCroix, in a fascinating article on the Supremacy Clause, traces its history in 1787. The Supremacy Clause was born out of the rejection of a proposal that would give the Congress a negative on state laws passed in violation of the Constitution. Instead, they turned to the Supremacy Clause to give this power to the judiciary.
Despite Madison’s efforts to convince his fellow delegates of the negative’s virtues (including a speech in which he described it as a helpful adaptation of the Privy Council’s power to review colonial legislation under the empire), the negative ultimately failed to win sufficient support in the Convention to become part of the Constitution. Instead, a few days after the final defeat of the negative, the delegates moved toward a different institutional approach to the supremacy question. Instead of a legislative solution, the majority of delegates shifted toward a judicial mechanism. In arguing against the negative, Gouverneur Morris articulated a strong preference for a judicial device: “A law that ought to be negatived will be set aside in the Judiciary [department] and if that security should fail; may be repealed by a [National] law.” Writing from Paris, Jefferson responded to Madison’s enthusiasm for the negative with a critique of its overbreadth. The negative, Jefferson argued, “proposes to mend a small hole by covering the whole garment. Not more than 1. out of 100. state-acts concern the confederacy. This proposition then, in order to give [Congress] 1. degree of power which they ought to have, gives them 99. more which they ought not to have. . . .” Instead of the negative, Jefferson advocated “an appeal from the state judicatures to a federal court, in all cases where the act of Confederation [controlled] the question.” This judicial remedy would, he argued, “be as effectual a remedy, [and] exactly commensurate to the defect.”
Within a few weeks, the delegates adopted what became the Supremacy Clause of Article VI, which states that the “Constitution, and the laws of the United States . . . and all Treaties . . . shall be the supreme Law of the Land,” and that “the Judges in every State shall be bound thereby.” Read in conjunction with the judiciary provisions of Article III, the Supremacy Clause endorsed judicial review of state law for conformity with federal law as the Constitution’s chief supremacy-enforcing mechanism. The Supremacy Clause-Article III complex established a norm of federal supremacy at the level of state legislation and insisted that that norm would be backed by judicial enforcement. Rather than giving Congress the power to wield a negative over state laws, then, the Constitution provided for a Supreme Court with the power to review state laws for compatibility with the Constitution.
Also, there is a body of scholarship that says that James Madison use the phrase “due process of law” in the Fifth Amendment, rather than “law of the land” to perhaps avoid confusion:
Why Madison chose the due process language of the New York proposal rather than the law-of-the-land clause in the proposals of his home state of Virginia, of North Carolina, of the Pennsylvania minority, and of every other state constitution dealing with the subject, is uncertain on the record. Charles Miller suggests that “law of the land” was not used because the expression already appeared in the supremacy clause of the federal Constitution with a specialized meaning and “it would be misleading to endow it with another meaning in the Fifth Amendment.”241 This speculation is highly plausible. In article VI, the “supreme Law of the Land” was expressly defined to consist of the Constitution, national laws enacted pursuant to it, and treaties made under its authority-all varieties of written, positive law.242 The fifth amendment, however, drawing its rationale and meaning from the state law-of-the-land clauses, and tracing its lineage to the Magna Carta, necessarily embraced elements of the common law. This meaning could be conveyed by the equivalent expression “due process of law” without risking the confusion that might arise from giving “law of the land” a connotation in the fifth amendment different from the specific meaning assigned in the body of the Constitution. It would also help assure that the clause would be a constitutional limitation upon the Congress, rather than being subject to the interpretation that any duly enacted law was the “law of the land.”
Robert E. Riggs, Substantive Due Process in 1791, 1990 Wis. L. Rev. 941, 991 (1990)
So this would suggest that the terms were meant to have different meanings. But this is putting the cart before the horse. Before there was a 5th Amendment, there was Article VI.
Perhaps the “supreme law of the land” was mean to embody some form of substantive due process for the judiciary. What if both the “supremacy clause” and the “Due process clause” trace their “lineage to Magna Carta”? How would that change the way we look at the Supreme Law of the land (in 1789 at least)?
There is some support for this notion in the Federalist. In Federalist 84, Hamilton cites several provisions of Article I Sections 8 and 9 (not the Supremacy Clause) as support for the argument against including a Bill of Rights. In it, he alludes to these provisions as part of the legacy of Magna Carta:
It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
Alas, Madison’s notes on this in Federalist 44 are unhelpful.
Thank you to Richard for inviting me to blog at the Online Library of Law & Liberty. I look forward to my stay.
–Thanks to Timothy Sandefur for his help with this post.
Cross-posted at JoshBlackman.com.