I hope they held back this opinion for June 15! From Justice Scalia’s opinion in Kerry v. Din.
The Due Process Clause has its origin in Magna Carta. As originally drafted, the Great Charter provided that “[n]o freeman shall be taken, or imprisoned, or be dis seised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land.” Magna Carta, ch. 29, in 1 E. Coke, The Second Part of the Insti tutes of the Laws of England 45 (1797) (emphasis added). The Court has recognized that at the time of the Fifth Amendment’s ratification, the words “due process of law” were understood “to convey the same meaning as the words ‘by the law of the land’” in Magna Carta. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276 (1856). Although the terminology associated with the guarantee of due process changed dramatically between 1215 and 1791, the general scope of the underlying rights protected stayed roughly constant.
Scalia goes on to discuss how Coke interpreted due process and Magna Carta:
Edward Coke, whose Institutes “were read in the Amer ican Colonies by virtually every student of law,” Klopfer v. North Carolina, 386 U. S. 213, 225 (1967), thoroughly described the scope of the interests that could be deprived only pursuant to “the law of the land.” Magna Carta, he wrote, ensured that, without due process, “no man [may] be taken or imprisoned”; “disseised of his lands, or tene ments, or dispossessed of his goods, or chattels”; “put from his livelihood without answer”; “barred to have the benefit of the law”; denied “the franchises, and priviledges, which the subjects have of the gift of the king”; “exiled”; or “fore judged of life, or limbe, disherited, or put to torture, or death.” 1 Coke, supra, at 46–48.
And Blackstone for good measure:
Blackstone’s description of the rights protected by Magna Carta is similar, al though he discusses them in terms much closer to the “life, liberty, or property” terminology used in the Fifth Amendment. He described first an interest in “personal security,” “consist[ing] in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” 1 W. Blackstone, Commentaries on the Laws of England 125 (1769). Second, the “personal liberty of individuals” “consist[ed] in the power of loco motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; with out imprisonment or restraint.” Id., at 130. And finally, a person’s right to property included “the free use, enjoy ment, and disposal of all his acquisitions.” Id., at 134.
Justice Breyer gives the Great Charter a happy 800th anniversary in his dissent:
These procedural protec- tions help to guarantee that government will not make a decision directly affecting an individual arbitrarily but will do so through the reasoned application of a rule of law. It is that rule of law, stretching back at least 800 years to Magna Carta, which in major part the Due Pro- cess Clause seeks to protect. Hurtado v. California, 110 U. S. 516, 527 (1884).