The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

Due Process

The “Law of the Land”

Magna Carta to the American Founding

Magna Carta, written in 1215, provided that no free man could be imprisoned, deprived of his property, “exiled or in any way ruined…except by the lawful judgment of his peers or by the law of the land.” More than a hundred years later, King Edward III’s version of the Magna Carta substituted the words “due process of law” for “law of the land.”

Whichever wording was used, all of the protections listed in the Magna Carta had originally been targeted against the possible abuses of power by the King. Much later, Sir Edward Coke wrote that the two phrases—“law of the land” and “due process of law”—could be used interchangeably. Therefore, the declaration that no man may be stripped of his rights to life, liberty and property except by “the law of the land” is an assertion of the rule of law. And the rule of law has often been lauded as the only thing standing between the rights of a citizen and the whim of the ruler. It is a protection against arbitrary and tyrannical government.

By the time of the Founding, many Americans, including Alexander Hamilton, agreed with Coke that “due process of law” was essentially the same as “the law of the land,” and that both were limited to determining the proper mode of judicial proceedings. According to this interpretation, most of the procedural rights named in the Bill of Rights would be a part of “due process” because they relate to judicial proceedings, but other protections, such as the government’s 5th Amendment power to take private property with “just compensation” would not fall under the heading of due process.