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4 About Guilt and Innocence The Indeterminacy Objection and the Constitutional Straightjacket The twin objections to the positivist trap are persuasive, but they invite a re- sponse I call the indeterminacy objection. If due process is not whatever process the legislature provides, what is due process? Commissioning the judges to iden- tify the law of the land independently of legislation effectively transfers from the legislative to the judicial branch ultimate law-making power. In short, while the positivist account fails because it reduces the due process clause to meaning nothing, any alternative account must avoid the tendency to make the due process clause mean anything. One natural response for nineteenth-century lawyers was to take the historical approach and identify the law of the land with the common law. Hurtado pressed this argument because common law procedure required grand jury review in felony cases. Quoting Pomeroy, Hurtado's brief interpreted the due process clause as constitutionalizing common-law procedure in criminal cases: due process does "not mean any law which the legislature may see fit to pass, but that common law course of proceedings known in England for centuries and de- scribed by our organic law[.]"19 Substituting the information procedure for grand jury review was an excellent example of a reasonable procedural reform that departed from the common law. In Hurtado, counsel for the state defended the information procedure as an im- provement on the grand jury, and predicted—accurately—that the states would move toward its general adoption unless precluded by a constitutional ruling.20 The Court found this argument persuasive. Justice Matthews wrote that to hold that common-law pedigree "is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or im- provement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians."21 The Court could have reached this conclusion on instrumental grounds. If any- thing was a mere variation in the form, but not the fairness, of proceedings, the substitution of information for indictment was just such a change. The Court, however, did not read due process as a limit on legislative choice of procedures within the range set by instrumental considerations of accurate adjudication. In- stead, the Hurtado Court met the indeterminacy objection by turning to substan- tive due process and crafting the standard of fundamental fairness. Justice Matthews did not use these very words, but fundamental fairness is the gist of the middle ground taken between the positivist trap and assuming a vast, standardless judicial power. The law of the land refers to that law of the land in each State, which derives its authority from the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.22