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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  • From King to Community

    Summarizing the medieval period and the transition from king to community:

    The thirteenth century had demonstrated that promises, confirmations, excommunication, and distraint did not work.  The barons had tried controlling the Council, but this was superficial.  The barons had to find some lasting enforcement role against the king and his ministers.

    The answer was shared governance in Parliament.  The Ordainers revived the reforms of 1258 but went further into the king’s household.  The Ordainers sought to remove evil councilors and share decision-making power on matters such as war, appointment of ministers, and accountability by a committee of Parliament.  The barons were substituting for royal administration and seeking a partnership with the king at all levels.  The relationship might be described as a change in sovereignty “from God to king” to “from God to king and community” as the barons assumed a role of evaluating the king’s divine “right and reason,” “common profit,” “necessity,” and general principles of good government.  The barons were grasping at the idea that their law served God’s justice, not the king’s sword.  National law and justice were rights of the subject rather than obligations the king owed to his subjects.

    Burrell, Magna Carta and Due Process of Law, page 140.


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    Published on August 27, 2017 · Filed under: Magna Carta;
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