Tom Burrell

Liberty and Common Consent

Magna Carta and Due Process of Law

Magna Carta and Due Process of Law: The Road to American Judicial Activism

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Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship, Substance, and Antidiscrimination, 35 Whittier L. Rev. ---- (2014), available at
January 2015
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  • In 2015, the English-speaking world will celebrate the Magna Carta’s 800th anniversary.

    The Magna Carta is a pillar of the English Constitution. In 1215, a group of powerful barons secured a great charter of liberties from King John. The barons believed that King John ruled arbitrarily and violated the customs and laws of the realm. A long-brewing struggle between the barons and the king erupted. The result, under the threat of civil war, was a promise of liberties from John to the barons.

    The Magna Carta’s anniversary, as anniversaries have in the past, will likely produce an abundance of literature.

    From the English side, we will read of the history of Parliament and the House of Commons: famous English institutions such as taxation only with representation, parliamentary privileges, the Petition of Right, the Habeas Corpus Act, and the English Bill of Rights. The English will celebrate the growth of Parliament’s representative government, which grew alongside the constriction of monarchical government.

    From the American side, we will see similar academic productions noting the history of our Constitution and tracing its connection to the English Constitution and the Magna Carta. Without much difficulty, American constitutionalism will trace “due process” back to Chapter 39 of the Magna Carta. Chapter 39:

    “No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”

    The two cornerstones of Chapter 39 and the era of the Magna Carta are (1) the concept of judgment and process before enforcement (2) common counsel or assent, e.g., participation in extraordinary taxation and government.

    But the conversation in America will quickly turn away from participatory government to the American notion of “Due Process of Law.”

    In America, “due process of law” means differnt things to different people. Most attribute a body of procedure to the phrase. For them, “due process of law” in the Fifth Amendment and Fourteenth Amendment entitles citizens to judicial customs and processes like fair notice, a hearing, and perhaps trial by jury.

    Others go much further and champion substantive “due process of law.” For substantive-due-process advocates, the Constitution’s use of “due process of law” incorporates not only a body of judicial processes but also generic concepts of reasonableness and social justice. Public actions or even enacted law that violates particular notions of right and wrong, privacy, happiness, dignity, equality, or some other social principle is a violation of the Constitution’s “Due Process of law.” The problem with this subjective constitutional standard is self-evident.

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