Per Legem Terrae

This term appeared in the Magna Carta, 1215, in clause 39 which is sometimes called the law of the land clause. The Magna Carta was written in Latin and used the term legem terrae. Clause 39 of the Magna Carta reads:

No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise 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.

In the Magna Carta, as the Court explains in Casey, the term was applied in reference to due process procedural protections against governmental action against Freemen. In America, due process has two components. The first is procedural as in the Magna Carta. The second is a substantive component that protects rights directly from governmental action that is not sufficiently justified to be considered legitimate. The sufficiency of the government's actions are analyzed through the process of constitutional review and subjected to one of three tests, the rational basis test, intermediate scrutiny test, strict scrutiny test. In addition to these tests substantive analysis applies a burden of proof element which establishes who must meet the burden of proving the elements of each test. One way the burden of proof is analyzed is in terms of whether the government's actions are to be presumed constitutional where the burden is on the challenger to demonstrate that the government's actions are not sufficiently justified under presumptive justifications or whether the actions are to be presumed unconstitutional where the government must demonstrate its authority to act prior to taking action. See Due Process for more.