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

Due Process

Due Process in Early State Constitutions

Or Is It “the Law of the Land”?

Most of the earliest state constitutions seemed to favor some variant of the phrase “law of the land” over “due process of law.” Connecticut’s 1776 constitutional ordinance named a litany of rights of which a man could not be deprived—including that “No Man shall be deprived of his Wife or Children”—except when it was “clearly warranted by the Laws of this State.” By contrast, Virginia’s Declaration of Rights of 1776 and Vermont’s Constitution of 1777 named only liberty among those rights of which a man could not be deprived “except by the law of the land.” New York’s 1787 Bill of Rights, however, muddied the waters even further by using both phrases in the same clause: “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.”

When we consider the conflicting interpretations that have bedeviled the concept of “due process of law” from its very inception, it is remarkable that the Due Process Clause itself seems to have passed through the amendment process exactly as James Madison wrote it, without any comment or debate.