Law of the Land

Author:Frank R. Strong

Page 1571

The phrase "law of the land" has two connotations of constitutional dimension. In general usage it refers to a HIGHER LAW than that of COMMON LAW declaration or legislative enactment. As a result of the SUPREMACY CLAUSE, the Constitution is such a higher law; it is the "supreme law of the land." In the exercise of JUDICIAL REVIEW, the SUPREME COURT claims the office of ultimate interpreter of the Constitution. It has thus become commonplace to think of decisions of the Court as the law of the land.

A second connotation has a specialized meaning that reaches far back into English history and leaves its indelible mark on American constitutional law. In 1215, the barons of England forced King John to sign MAGNA CARTA, pledging his observance of obligations owed to them in return for their fealty to him. Among the provisions was one that declared (in translation from the Latin): "No freeman shall be taken or imprisoned or dispossessed or outlawed or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the judgment of his peers, or by the law of the land." Magna Carta was necessarily a feudal document, but this provision was so worded that it retained meaning long after feudalism gave way to the modern constitutional state.

The term "law of the land" consequently continued in English usage, representing that body of FUNDAMENTAL LAW to which appeal was made against any oppression by the sovereign, whether procedural or substantive. By 1354 there had appeared an alternate formulation, "due process of law." In his Second Institute of the Laws of England (1642), Sir EDWARD COKE asserted that "law of the land" and "due process of law" possessed interchangeable meanings; nevertheless, the older version was not thereby supplanted. The PETITION OF RIGHT (1628) played no favorites with the two terms, demanding "that freemen be imprisoned or detained only by the law of the land, or by due process of law and not by the king's special command, without any charge."

In the politically creative period after Independence, American statesmen preferred "law of the land" to "due process," apparently because of its historic association with Magna Carta. All eight of the early state CONSTITUTIONS incorporating the guarantee in full or partial form employed the term "law of the land"; and the same was true of the NORTHWEST ORDINANCE (1787). The first appearance of "due process of law" in American...

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