Cite as: 521 U. S. 702 (1997)
Souter, J., concurring in judgment
peating Magna Carta's guarantee of "the law of the land." 5 On the basis of such clauses, or of general principles untethered to specific constitutional language, state courts evaluated the constitutionality of a wide range of statutes.
Thus, a Connecticut court approved a statute legitimating a class of previous illegitimate marriages, as falling within the terms of the "social compact," while making clear its power to review constitutionality in those terms. Goshen v. Stonington, 4 Conn. 209, 225-226 (1822). In the same period, a specialized court of equity, created under a Tennessee statute solely to hear cases brought by the state bank against its debtors, found its own authorization unconstitutional as "partial" legislation violating the State Constitution's "law of the land" clause. Bank of the State v. Cooper, 2 Yerg. 599, 602-608 (Tenn. 1831) (opinion of Green, J.); id., at 613-615 (opinion of Peck, J.); id., at 618-623 (opinion of Kennedy, J.). And the middle of the 19th century brought the famous Wynehamer case, invalidating a statute purporting to render possession of liquor immediately illegal except when kept for narrow, specified purposes, the state court finding the statute inconsistent with the State's due process clause. Wynehamer v. People, 13 N. Y. 378, 486-487 (1856). The statute was deemed an excessive threat to the "fundamental rights of the citizen" to property. Id., at 398 (opinion of Comstock, J.). See generally E. Corwin, Liberty Against Government 58-115 (1948) (discussing substantive due process in the state courts before the Civil War); T. Cooley, Constitutional Limitations *85-*129, *351-*397.
Even in this early period, however, this Court anticipated the developments that would presage both the Civil War and the ratification of the Fourteenth Amendment, by making it clear on several occasions that it too had no doubt of the
5 Coke indicates that prohibitions against deprivations without "due process of law" originated in an English statute that "rendred" Magna Carta's "law of the land" in such terms. See 2 E. Coke, Institutes 50 (1797); see also E. Corwin, Liberty Against Government 90-91 (1948).
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