When Congressman James Madison drafted a proposed bill of rights in the First Federal Congress of 1789, he did not write on a blank slate. He took into account historic Anglo-American constitutional documents, such as Magna Carta (1215) and the English Bill of Rights (1789). But he paid particular attention to another set of sources: the recommendations for constitutional amendments issued by state conventions that ratified the Constitution -particularly those in Virginia and New York.
New York’s recommended amendments were extensive, and authored principally by John Lansing, Jr. (1754-1829).
Lansing was a distinguished New York lawyer and a member of the state legislature. Later in his career, he became New York’s Chief Justice and, subsequently, Chancellor—the most important legal position in the state.
Lansing was a New York delegate to the 1787 Constitutional Convention in Philadelphia. However, New York was one of only two states that limited their delegates’ authority to amending the Articles of Confederation. In a Dec. 21, 1787 explanatory letter to the governor, Lansing and his fellow delegate Robert Yates explained that because proposing an entirely new Constitution was outside their authority, they left the convention early. They also did not think a unified republican central government was practical. Their colleague, Alexander Hamilton, remained in Philadelphia, but in a private capacity.
In early May, 1788, Lansing was elected to the state convention that would decide whether to ratify the proposed Constitution. At the gathering, he became one of the leaders of the opposition. Eventually, however, he helped broker the deal by which New York ratified the document. Lansing’s proposed amendments, including a bill of rights, were part of the deal.
Ironically, the New York Constitution then in effect did not include a bill of rights. But in early 1787, Samuel Jones (another person central to the ratification bargain) had submitted a proposed statutory bill of rights to the legislature. When passed on January 26, 1787, it became “AN ACT concerning the rights of the citizens of this State.”
This measure became an important source for New York’s proposed amendments to the U.S. Constitution. It particularly focused on the right of people prosecuted by the state to “due process of law”—indeed, it used that phrase four times. It also employed the synonyms “due course of law” and “in due manner.”
When Madison drafted what became the Fifth Amendment, he adopted the term most often employed by Lansing and his fellow New Yorkers: “due process of law.”
I have placed a copy of the New York Bill of Rights here. As the document makes clear, “due process of law” meant merely, “in accordance with existing legal procedures.” It had nothing to do with the content of the laws themselves, as the U.S. Supreme Court has mistakenly ruled.
This article was originally published at the Independence Institute, and is reposted here with permission of the author.
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