written constitutional texts. This indeed was its weakness. For the
question early obtruded itself, whether judicial review could pretend to
operate on a merely moral basis. Both the notion that the Constitution
was an emanation from the sovereignty of the people, and the idea that
judicial review was but a special aspect of normal judicial function,
forbade the suggestion. It necessarily followed that unless judicial
protection of the property right against legislative power was to be
waived, it must be rested on some clause of the constitutional document;
and, inasmuch as the due process clause and the equivalent law of the
land clause of certain of the early state constitutions were the only
constitutional provisions which specifically mentioned property, they
were the ones selected for the purpose.

The absorptive powers of the law of the land clause, the precursor in
the original state constitutions of the historically synonymous due
process clause, was foreshadowed as early as 1819 in a dictum by
Justice William Johnson of the United States Supreme Court:

As to the words from Magna Charta ... after volumes spoken and
written with a view to their exposition, the good sense of
mankind has at length settled down to this: that they were
intended to secure the individual from the arbitrary exercise
of the powers of government, unrestrained by the established
principles of private rights and distributive justice.[62]

Thirty-eight years later, in 1857, the prophecy of these words was
realized in the famous Dred Scott Case,[63] in which Section 8 of the
Missouri Compromise, whereby slavery was excluded from the territories,
was held void under the Fifth Amendment, not on the ground that the
procedure for enforcing it was not due process of law, but because the