Law of the Land

To understand what is taking place in the structural and doctrinal changes in our dual constitutional system of government, it is necessary to comprehend the significance of that invaluable limiting principle of free government, under which no man may be deprived of life, liberty, property or the pursuit of happiness, or of his privileges and immunities, but “by the law of the land,” or, by “due process of law.” As we have said, the term means the supremacy, or, as the English phrase it, “the rule of law,” as contradistinguished from arbitrary action, in determining the rights of the citizen.

Since “the law of the land” is made up of an accumulation of protective principles and concepts, starting with Magna Charta, in 1215, and added to by all of the bills and petitions of rights enforced by Englishmen for seven centuries, and further enlarged by our own ancestors, to guard against oppression by our federal government, no enumeration of its constituent principles would be safely exhaustive. Yet the more important can be set out.

“The law of the land” means first, that no citizen can be punished or can be made to suffer in his person or in his property, except for a clear breach of the established law, proven before the ordinary courts. It means, further, that no man is above the law, but that every man, whatever his station or condition, is subject, along with the plainest citizen, to the ordinary law and to the jurisdiction of the ordinary courts. As Justice Brandeis said in a dissenting opinion, in Burdeau v. McDowell:

At the foundation of our civil liberty lies the principle which denies to government officials an exceptional position before the law and which subjects them to the same rules of conduct that are commands to the citizen.

In that case, however, in which an assistant to the Attorney General of the United States had instigated a theft of evidence, it was the victim of the theft who was deprived of his rights and convicted while the assistant to the Attorney General was, in effect, elevated above the law, by a majority of the Supreme Court.

However the Supreme Court may view the matter in particular cases, it is constitutionally impossible in our system to introduce any exemption of government officials from the jurisdiction of the ordinary courts, such as is the practice in Continental Europe, under what is known as droit administratif. In European countries, an official, a policeman or a soldier may not be resisted by a subject in any case where he is acting under pretense of governmental authority; nor may an injured party sue for redress in the ordinary courts. The official is not amenable to the ordinary law, but has his own court and his own peculiar law.

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