Jefferson and James Otis, were steeped in classical learning and in the thinking of 17th and 18th century political thinkers such as James Harrington, who espoused an "empire of laws, and not of men," John Locke and Baron de Montesquieu. Williams said the Founding Fathers inherited a concept of due process which was "a [common law] principle of change and adaptations . . . long before it was written into the United States Constitution."
Due Process Clause in the First Hundred Years
The Due Process Clause in the Fifth Amendment and the later version thereof which appears in the Fourteenth Amendment, "nor shall any State deprive any person of life, liberty, or property" have in different eras been interpreted narrowly or more broadly. Under the narrower interpretation, which prevailed during the first 100 years of the Republic, "the original significance of the clause was purely procedural--nobody should be punished without trial by jury" and other fair and impartial procedures.
McCloskey said that "the due process clause . . . had usually been interpreted as having a procedural meaning" . . . "it meant only that the manner, not the object of legislation was subject to judicial scrutiny."
Chief Justice John Marshall further restricted the application of the Due Process Clause by ruling in Barron v. City of Baltimore, 32 U.S. 243 (1832), a case involving a suit by a private party for damage caused by the City of Baltimore to his wharf, that the Fifth Amendment could not be applied to actions of state governments. Marshall said that if the Founders so intended, they would have said so in the Constitution. Marshall used other clauses of the Constitution, including the impairment of contracts clause, Art. I, sec. 10, the commerce clause, the necessary and proper clause and the supremacy clause, to expand the powers of the federal government and to demarcate the line between state and federal power.
The notion that the...