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 http://ssrn.com/abstract=2374985

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September 2016
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  • I enjoy gun rights and the right to bear arms.  But I will not put my faith in the Supreme Court to protect that right.  I know what the Supreme Court does to “rights” including those in the Bill of Rights and other parts of the Constitution.  For the last seventy-five years, the Supreme Court has been an ideology center driving progressive values in the name of the Constitution.  Notwithstanding recent outlier opinions, Heller and McDonald, individual gun ownership is not one of those progressive values protected by the Court’s typical jurisprudence.

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    With the loss of Justice Scalia, the pillar of the Court’s conservative wing, how long will it be before the Supreme Court reevaluates the Second Amendment as a protection for the individual’s right to bear arms?  The modern Supreme Court has shown no restraint from manipulating constitutional language that had never been used, and was never intended to be used, in a given manner to invent a new “constitutional” doctrine—thereby invalidating dozens of state laws and disenfranchising the American people in the process.

    The Court’s interpretation of “Due Process of Law,” for example, extends far beyond a mechanism to protect the rule of law from arbitrary executive or judicial action.  Courts have extended it to invalidate legislation itself.  Courts invented “substantive due process,” which allows the judge to determine whether the law is valid based upon his or her subjective perception of whether the enacted law is fair, reasonable, or socially just.

    Under the Court’s control, the Fourteenth Amendment’s “Equal Protection of the Law” became “protection of equal laws”—which is the not-so-slight difference between applying the law fairly and fully on the one hand and a substantive equality provision for the judge (not the legislators) to subjectively determine whether the law is fair, reasonable, and bestows equal dignity and respect to all divisions of society on the other hand.  If the law does not meet with the judge’s approval, it is unconstitutional.  The constitutional right to privacy and right to abortion were invented without any constitutional basis or supporting text.

    The drive against guns will work its way into judicial ideology to present new challenges to individual gun ownership.   Recent events illustrate the anti-gun agenda.  A radical Muslim enters a high-attendee event and executes individuals in the name of Islam.  The response by a certain segment of society is to identify the act not with terrorism but with “gun violence.”  The main stream media: “we have a gun problem in America.”  An individual associating with Black Lives Matter ambush-kills five cops in Dallas and certain segments of society seem to believe that the gun he used committed the crime on its own, the gun made him do it.  It was all about the gun used.  There’s no further look into the hate-filled ideology within those movements.

    When this anti-gun ideology enters the courts, the Supreme Court will overhaul the historic meaning of the individual’s right to bear arms.  The Court will bury the positive text of “people keep and bear arms” with militia membership and deprive the Amendment from protecting individuals’ right to bear arms.  This reading will prevent individuals living in localities like Chicago, DC, and New York, and other cities with stringent gun control tendencies, from protection.

    With a militia-reading of the Second Amendment, gun owners will no doubt react with the concern “what about self-defense.”  The courts will say that the Amendment has nothing to do with self-defense.  Progressive advocacy groups will likely retort with statistics that individual gun ownership does not correlate with self-defense.  “In fact more individuals and home owners are likely to be harmed by their guns than they are to use those guns in self-defense.”   The anti-gun craze may even persuade the Court to find a negative or prohibition of an individual’s gun rights in the Second Amendment.  The negative would be something along the lines of because the right to bear arms is limited to militias and because individual gun ownership is unsafe, the modern Second Amendment prevents the federal government and each and every state from allowing its citizens to own guns.  The Court’s new interpretation of the Second Amendment would mean that only military and government officials are permitted to own guns.  State and local laws permitting individuals and homeowners from owning guns are unconstitutional.

    The above-described path is perfectly consistent with modern Supreme Court judicial activism.  Rights are invented and destroyed at the Court’s outcome-driven whim.  The Court has radically redefined our federal and state governments under interpretations of the incorporated First Amendment, the Fourth Amendment, the Fifth Amendment, the Eighth Amendment, and the Fourteenth Amendment.  I don’t mean questionable or reasonable interpretations; I mean living, breathing, we-own-the-country interpretations.  Many judicially created rights should have been evaluated, adopted, or discarded through Article V or at least through legislative means.  But our society has seemingly accepted the notion to “let the courts sort it out.”

    So beware of putting your faith in the Second Amendment.  The likelihood of the Supreme Court continuing to protect the individual right to bear arms is slim, in my humble opinion.  In fact, it may come down to the 2016 election.  Several justices are 80ish.  Both Heller and McDonald were 5-4 decisions.  If the Democrats win the election, there will probably be several new justices nominated and appointed to the Court.  One of the major goals of the progressives will be neutralizing the Second Amendment from blocking gun control laws.

    Charles: “What would happen if guns were banned in America?”
    Lucy: “Statistics show that most violence is committed by guns.  Banning guns will end gun violence.”
    Charles: “With a ban, the law-abiding would not have guns and the criminals, thugs, and terrorists would.”
    Lucy: “No, the ban would apply to all, equally.”
    Charles:  “But terrorism and murder are against the law now.  Don’t you think that the criminal, thug, and terrorist will violate the ban just as they violate every other moral or legal command?  Further, the law-abiding will comply with the ban.  Thus, you’ve disarmed the good guys and declared open-season on them.”
    Lucy: “I hadn’t thought about that…but guns are bad.  Wouldn’t we all be better off if there were fewer guns?  Most gun violence is probably committed by guns that were purchased legally. Banning guns is good.  There will be less gun violence.  I don’t think police should be able to carry guns.”
    Charles:  “Did the ‘War on Drugs’ prevent the availability of drugs?  Did Prohibition prevent the availability of alcohol?  Do you want the police to be armed with only a whistle?”
    Lucy: “What about other countries where guns are banned and crime is lower?”
    Charles: “Good point, but apples and oranges.  Other countries do not have our ethnic struggles.”
    Lucy: “Violent crime is a problem for all communities.”
    Charles: “We finally agree on something.”
    Lucy: “Fewer guns means less gun violence.”
    Charles: “You can ask me for my gun when you demonstrate that no one else has a gun or there is no need for a gun.”

     

    Comments Off on To Those Who Rally the Second Amendment to Protect an Individual’s Right to Gun Ownership
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    front matter. . .

    Contents

    I. Introduction

    II. Medieval Institutions and Political Theory

    A. Saint Peter and the Vicar of Christ
    B.  The Coronation Oath
    C.  Feudalism

    III. Normans, Angevins, and the Magna Carta

    A. The Norman Conquest and Henry I’s Charter
    B. Consilium and Henry II’s Assizes
    C. The Assizes of Clarendon and Novel Disseisin
    D. Richard I: Regency and Community

    IV. King John and the Magna Carta

    A. Chapter 12
    B. Chapter 39
    C. Chapter 61

    V. The Thirteenth Century after Runnymede

    A. Henry III and “Evil” Councilors
    B. The Baronial Period of Reform, 1258–1265
    C. Edward I and the Council in Parliament

    IV. The Fourteenth Century and the Rise of Participatory Government

    A. Edward II’s Coronation Oath and Baronial Reform
    B. The Ordinances and the Competition for “Right and Reason”
    C. The Ordainers, Rebellion, and the Statute of York
    D. The Commons’ Petition
    E. The King’s Council and Common Law
    F. Archbishop Stratford and Judicium Parium
    G. Richard II and Impeachment

    VII. Summary of the Medieval Period: The High Court of Parliament

    VIII. The Seventeenth Century and Reason of State

    IX. The American Constitution

    A. Independence, the Articles of Confederation, and Amendments to the Articles
    B. The United States Constitution and the Fifth Amendment

    X. The Judiciary and Due Process of Law: Substantive Due Process

    A. Due Process of Law, Law of the Land, and Constitutional Common Law
    B. Vested Property Interests and Due Process of Law
    C. The Fifth Amendment, Substantive Due Process of Law, and Judicial Enforcement of the Bill of Rights
    D. The Fourteenth Amendment and Substantive Due Process
    E. Modern Supreme Court Law

    XI. Conclusion

    HTML Index (pdf)

    A

    Adams, George Burton…………… 22, 97

    American Revolution … 172, 243, 265, 267

    1774 Declaration and Resolves.. 169

    American Independence …171, 191, 265, 267

    Antifederalists…………………… 181, 182

    arbitrary rule……….. 119, 230, 233, 250

    America lost appreciation for concept of   … 187, 216, 218

    America, use of ..169, 185, 187, 190, 197, 203, 216, 221, 239, 247, 250

    England, use of ……3, 41, 48–70, 78, 134, 137, 145, 155–66, 184, 187, 207, 231, 232, 240, 265

    judiciary creating arbitrary rule ..185, 245, 248

    Arlidge, Anthony………………………… 55

    Article V……. 268, see also Constitution

    Articles of Confederation ..17, 168, 172, 173, 179

    amendments to……………………. 175

    Ashley, Maurice…………………. 162, 163

    assizes… 26, 32–44, 46, 57, 58, 60, 63, 84, 183

    Assize of Clarendon…………… 36, 37

    presentment juries…………….. 36

    Assize of Novel Disseisin…..36, 39–41

    B

    Baker, J.H…. 22, 33, 37, 40, 42, 43, 77, 118

    Baldwin, James F. …….35, 73, 81, 85, 89, 114–22, 122

    Bank of Columbia v. Okely, 17 U.S. 235 (1819)  …. 203

    Baronial Period of Reform, 1258 .17, 43, 50, 70–80, 85, 93, 98, 99, 106, 112, 116, 127, 132, 138

    as a building block………………….. 79

    Committee of Twenty-Four……… 73

    community of bachelors………….. 79

    Council of Fifteen… 71–80, 101, 132

    Provisions of Oxford……………….. 74

    Bartlett, Robert………………… 32, 43, 75

    battle, trial by ….14, 22, 40, 41, 53, see also judicial proofs

    Berger, Raoul…………………………… 188

    Biancalana, Joseph…. 24–26, 33, 39, 41

    Bible …see also church; Christian empire

    Jesus Christ…………………………… 11

    Luke……………………………………… 9

    Matthew……………………………….. 5

    Paul…………………………………… 7, 8

    Romans…………………………………. 7

    Saint Peter……………………………… 5

    bicameralism……. see also Constitution

    Bidwell, William B……………………… 149

    Bill of Rights…………………………….. 164

    as guiding principle………… 233, 239

    English ……134, 152, 164, 165, 233, 268

    incorporation of…………….. 251, 252

    judicial activism……………………. 240

    state bills of rights… 171, 182, 183, 192, 233, 234, 237, 239, 265

    United States …182, 194, 230, 236, 251, 252, 256, 266

    unnecessary….…….234, 235, 238–40

    bills of attainder…… 192, 204, 213, 247

    Blackstone, Sir William…. 151, 185, 201

    Bonham’s Case ….see also Coke, Sir Edward

    Bracton…………………………. 11, 82, 150

    Bracton’s antinomy…………… 11, 13

    Bracton’s two theories of kingship 11

    natural law…………………………… 13

    Brand, Paul……………………… 25, 82, 87

    Brown v. Board of Education, 347 U.S. 483 (1954)                    257

    Brown, A.L………………………………… 36

    Burgh, Hubert de…………………. 70, 125

    Burns, J.H…………………………………… 6

    Burrell, Thomas H…..17, 21, 47, 168, 172, 174, 180, 241, 242, 245, 251–53, 257–59

    C

    Calder v. Bull, 3 U.S. 386 (1798) …211, 218

    Cam, Helen…….. 80, 100, 121, 130, 143

    Canning, J.P………………………….. 16, 46

    Carpenter, D.A……………. 55, 67, 68, 75

    Chapman, Nathan S……………. 186, 201

    Charles I…………………….. 153, 161, 162

    execution of………………………… 162

    Charles II…………………………………. 162

    charter of liberties……………………… 17

    Henry’s……………………………. 31, 52

    Stephen’s……………………………… 32

    charter privileges and immunities ….17, 55

    checks and balances ….see also Constitution

    Cheney, C.R………………………. 9, 17, 50

    Christian appeals………………………. 6, 7

    null and void…………………………… 6

    reason of sin……………………….. 6, 7

    Christian empire………………………….. 6

    consent…………………………………. 6

    papal release…… 65, 79, 90, 93, 139

    papal review…………………………… 7

    Saint Ambrose………………………… 7

    sword bearer………… 9, 44, 140, 166

    temporal and spiritual swords……. 9

    church ….see also Bible; Christian empire

    canon law……………….. 5–14, 42, 50

    corporate status……………………… 6

    Petrinacy……………………………. 6, 8

    reason ….7, 8, 10, 11, 13, 86, 94–96, 99, 104, 106, 109, 117, 128, 140, 149, 207, 268

    Coke’s artificial reason………. 149

    ratione alligatus………………….. 8

    Civil Rights Act of 1866………… 243, 252

    civil war………………………. 1, 19, 44, 50

    American……………………… 241, 249

    English ….1, 53, 65, 72, 79, 80, 147, 162

    Clarke, Maude Violet………….. 124, 143

    Coke, Sir Edward …..52, 53, 148, 155, 161, 185, 196, 205, 217, 231, 246, 248, 267

    advocacy rather than legal history ….148

    Cole, Maija J…………………………….. 149

    common consent ….35, 145, 147, 159, 160, 165, 168, 185, 233, 236, 243, 267, 268

    common counsel …3, 26, 29, 34, 35, 55–57, 62, 67, 72, 88, 100, 102, 109, 128, 137

    assent ..……34, 35, 85, 88, 101, 102, 106, 130, 143, 175, 176

    common law……………………………… 78

    American adoption of…….. 170, 191

    birth of………………………………… 42

    common law ineffective………… 122

    common-law procedure ….82, 116, 118, 126, 129, 130, see also Council sub conciliar process; assizes; due process of law; law of the land

    information or suggestion……… 118

    ius commune………………………… 42

    king’s ability to record crimes…. 106

    common utility ….7, 8, see also Christian empire; Petrinacy; kingship; judicial activism sub judicial prerogative

    common good….. 67, 68, 79, 87, 207

    common profit ….88, 91, 101, 102, 104, 123, 140, 268

    necessity ….8, 10, 18, 44, 57, 60, 86–88, 95, 96, 114, 137, 140, 151, 163, 169, 207, 268

    salus populi suprema lex ….see also commonwealth

    welfare …10, 18, 44, 57, 86, 96, 102, 114, 136, 163, 166, 241, 245, 268

    commonalty ……93, 106, 113, 139, see also High Court of Parliament

    commonwealth …166, 267, see also judicial activism sub courtwealth

    commune, London’s……………………. 46

    competition over right, reason, utility, and necessity …. 91, 95, 99, 102, 106, 109, 128, 158

    compurgation ….14, 15, 22, 38, 40, 61, see also judicial proofs

    congressional enforcement of the law…..174, 178

    Constitution

    Article V………………………. 264, 268

    as a black box…………. 204, 256, 264

    bicameralism………….. 111, 171, 180

    checks and balances… 179, 248, 266

    ex post facto…………………. 192, 213

    impeachment………………………. 180

    ratification………………………….. 182

    we the people………………. 264, 267

    constitutional common law….. 191–93, 196, 202, 214, 246, 267

    Constitutional Convention of 1787 …179, 188, 194, 234, 236, 266

    coronation charter……………. 17, 31, 32

    coronation oath ……. 14–18, 30, 31, 52, 82, 86–102, 104, 107, 128, 133, 134, 136, 139, see also kingship, theory of

    inalienable rights … 16, 233, 250, 251

    Costello, George A…………………….. 256

    Council ….22, 34, 35, 61, 62, 69, 71–80, 80–90, 97–113, 114–22, 127, 132, 138, 140, 143, 180

    chancellor ….45, 69, 72, 75, 77, 83, 115, 116, 121

    committee of hearers……………. 115

    conciliar process……………. 118, 120

    concilium baronum………………… 69

    Council’s judicial role……… 116, 145

    common law ineffective……. 122

    due process of law…………… 121

    Council’s legislative role………… 115

    false suggestions……………. 120, 121

    justiciar……………. 45, 69, 72, 75–77

    council-regency … see also kingship, sub regency

    Coutances, Archbishop Walter de ….45, 47, 63

    cruel and unusual punishment …..…see also Constitution

    curia regis….. 11, 13, 27, 28, 37, 43, 117

    D

    Darnel’s Case …153, see also forced loans

    Dartmouth College v. Woodward, 17 U.S. 518 (1819) ….203, 230

    Davidson v. New Orleans, 96 U.S. 97 (1878)….. 211

    Davies, James Conway …..86, 91, 95, 96, 99, 101–05

    Davies, R.G……………. 75, 113, 114, 116

    De la Pole, Chancellor………………… 131

    impeachment………………………. 131

    Denton, J.H……………………………….. 75

    deposition …8, 16, 46, 108, 142, see also church; High Court of Parliament

    Edward II’s deposition…………… 107

    John’s almost………………………… 51

    Richard II’s deposition…………… 134

    Despensers……………………….. 105, 126

    diffidatio…………….. see also feudalism

    disseisin……………… see also feudalism

    Dodd, Gwilym………. 6, 81, 83, 111, 112

    Domesday Survey………………….. 30, 36

    Douglas, David C…. 2, 15, 21, 30, 31, 37

    Dred Scott…………………………. 229, 230

    Due Process Clause ….2, 183, 189, 191, 211, 212, 228, 230, 231, 245, 249–64

    substantive due process ….3, 230, 231, 233, 245, 252, 257

    due process of law ….2, 117, 118, 121, 126, 129, 145, 154, 155, 159, 182–264, 266, 267, see also Magna Carta; Chapter 39; Fifth Amendment; Fourteenth Amendment

    caught red-handed………….. 23, 129

    E

    Easterbrook, Frank H………….. 183, 186

    Edward I ….6, 19, 33, 80–91, 93, 96, 99, 101, 103, 107, 109, 114, 116, 119, 139, 144, 157, 231

    Council in Parliament……………… 85

    law giver………………………………. 85

    Edward II …..15, 75, 91–109, 114, 116, 128, 139, 141, 144

    coronation oath of…………………. 92

    Edward III …108, 113, 123, 124, 130, 142

    Ehrlich, Ludwik………………….. 8, 82, 93

    Elton, G.R………………………………… 122

    English Constitution ….1, 135, 141, 147, 165, 168, 179, 231, 265, 267

    Equal Protection Clause ….see also Fourteenth Amendment

    Evans, G.R…………………………………… 9

    evil councilors …91, 96, 101, 104, 140, 152, 232

    evolving standards of decency…….. 264

    ex post facto…….. see also Constitution

    excommunication …8, 9, 16, 44, 51–53, 65, 68, 71, 79, 83, 97, 124, 140, see also church

    John’s………………………………….. 51

    F

    Farrand, Max…………………….. 179, 180

    federalism………………….. 241, 256, 266

    feudalism………………………. 18, 46, 128

    commendation……………………… 21

    Conrad II…………………………. 23, 60

    consilium …21, 24, 26, 27, 29, 34, 69, 102, 137, see also common counsel

    diffidatio………………………… 25, 143

    diffidation …25, 26, 44, 54, 58, 62, 108, 140, 143

    disseisin…….. 24, 39, 48, 59, 61, 184

    distraint …24, 36, 38, 39, 41, 49, 62, 67, 97, 138, 140, 173, 178

    fealty………. 8, 15, 20, 23, 52, 57, 69

    feud…………………………………….. 19

    feudal contract……………………… 24

    homage …21, 23, 24, 32, 52, 66, 94, 95, 108

    judgment before………….. 22, 48, 54

    sine judicio et injuste………….. 39

    judicium parium.……………………. 57

    maintenance……………………. 20, 21

    oath-worthy………………………….. 20

    retainers………………………………. 19

    self-help………………………………. 26

    surety………………… 19, 20, 120, 121

    tenants in chief….. 21, 26, 28, 57, 58

    Field, Justice Stephen J… 245, 249, 251, 252, 254, 257, 258

    Fifteenth Amendment……………….. 241

    Fifth Amendment …2, 3, 179, 182, 227, 228, 254, 256, 264, 266

    plain-language construction of …183, 191, 217

    Five Knights Case ..see also forced loans

    forced loans……………….. 152, 153, 158

    Fourteenth Amendment …3, 241, 251, 252, 256–58, 266

    Equal Protection Clause …242, 252, 256, 257, 261

    substantive equal protection …253

    fundamental law …1, 97, see also arbitrary rule; Constitution; English Constitution

    binding the king…………………… 149

    Constitution………………………… 181

    judicial use of ….223, 224, 246, 254–56, 258, 259, 264, 268

    Magna Carta as……………….. 97, 187

    prerogative a part of…………….. 154

    Furman v. Georgia, 408 U.S. 238 (1972) …264

    G

    Galbraith, V.H……………………………. 30

    Ganshof, F.L…………………………. 19, 21

    Gaveston, Piers or Peter …91, 93, 96, 102, 105, 126

    Gedicks, Frederick Mark…………….. 251

    Glorious Revolution …162, 163, 165, 168, 265, 268

    seven bishops case……………….. 163

    Goldsworthy, Jeffrey …117, 152, 155, 157, 158, 165, 202

    Great Councils …27, 34, 70, 72, 74, 75, 103, 123

    Greenaway, George W………. 15, 31, 37

    Griswold v. Connecticut, 381 U.S. 479 (1965) …258, 260

    H

    habeas corpus …2, 152, 153, 158, 162, 236

    Haines, Charles Grove….. 205, 211, 251

    Hamilton, Alexander …185–90, 202, 204, 205

    Harding, Alan …14, 19, 22, 31, 36, 37, 40, 45, 76, 87, 110

    Harrison, John……… 204, 212, 230, 231

    Harriss, G.L. …….10, 72, 88–97, 99, 110–16, 124, 131–33, 144

    Haxey, Thomas………………….. 134, 163

    Haywood, Attorney General …193, 198, 232

    heightened scrutiny …see also judicial review

    Helmholz, R.H……………………………. 42

    Henry I……. 6, 17, 30, 31, 45, 52, 53, 55

    Henry II ….32, 35, 36, 39, 48, 49, 52, 57, 59, 63, 76, 77, 81, 183

    Henry III …66–71, 78–90, 109, 127, 139, 144

    majority………………………….. 67, 68

    minority……………………………….. 66

    Henry IV………………………………….. 134

    Herle, Charles…………………………… 158

    Hershey, Andrew H……… 72, 76, 77, 81

    High Court of Parliament …1, 84, 129, 132, 136, 139, 142, 144, 145, 265

    impeachment….. 128, 129, 131, 142

    parley………………………………….. 27

    parliamentary procedure……….. 133

    parliamentary sovereignty …2, 3, 29, 140, 145, 165, 166, 265

    partnership with community …141, 145

    Holdsworth, Sir William….27, 28, 33, 34, 37, 43, 49, 55, 77, 78, 82, 83, 112, 115, 122, 149, 152, 153, 162, 165

    Holmes v. Walton (New Jersey 1780) ….202

    Holmes, George……………………….. 129

    Holt, James C…………….. 44–64, 75, 128

    House of Commons…………………. 1, 75

    Commons …3, 42, 75, 100, 104–67, 181, 184, 185, 242, 265, 267

    impeachment …2, 99, 108, 130–33, 135, 139, 142, 152

    Hurnard, Naomi D………………………. 36

    Hurtado v. California, 110 U.S. 516 (1884) ….230, 245, 246, 248

    I

    indictment and presentment… 37, 38, 60, 109, 118, 121, 129, 130, 142, 154, 155, 183, 185, 190, 202, 204, 245, see also assizes; common-law procedure; due process of law; law of the land

    information…….. see also common law

    Innocent III, Pope…….. 9, 17, 50–54, 65

    inquest ….30, 39, 76, 80, 129, see also assize

    itinerant judges………………………….. 37

    J

    James I…………………………….. 150, 162

    James II……………………………. 162, 163

    Jefferson, Thomas…………………….. 237

    Jensen, Merrill……………. 172, 174, 175

    Johnson, Robert C…………………….. 149

    Jolliffe, John Edward Austin …7–117, 19, 25, 35, 64, 103, 108, 111, 143

    Judge, Igor………………………………… 55

    judicial activism ….245, 256, 258, 261, 264, see also arbitrary rule

    courtwealth………………………… 257

    judicial anarchy……………………. 211

    judicial hegemony………….. 263, 264

    judicial prerogative….. 205, 240, 245

    judicial state…………… 258, 267, 268

    reasonableness review …3, 219, 251, 254, 255, 261, 264, 268

    fairness…..204, 230, 245, 254, 257

    tyranny of the majority…… 240, 248

    judicial nominations………………….. 264

    judicial proofs ….38, see also battle, trial by; compurgation; ordeal; trial by jury; inquest; oath; judicium parium

    judicial review… 224, 227, 235, 248, 264

    beyond reasonable doubt ………202, 217, 227, 248, 249

    heightened scrutiny……….. 254, 255

    judicial restraint…………………… 216

    rational basis………………… 254, 255

    vested property interests………. 211

    judicium parium ….22, 38, 46, 60, 61, 109, 125–27, 129, 130, 142, 144, 181, see also feudalism; High Court of Parliament

    Judson, Margaret Atwood……… 148–63

    Jurow, Keith…………………………….. 120

    K

    Kantorowicz, Ernst………… 8, 11, 18, 99

    Keeler, Mary F………………………….. 149

    Keeney, Barnaby C…………………. 23, 61

    Kent, Chancellor James…… 192, 237–40

    Kenyon, J.P……… 148, 150, 158, 160–63

    Kern, Fritz……………………. 8, 10, 29, 33

    Killian, Johnny H……………………….. 256

    kin…………………………………………… 19

    King, P.D…………………………………… 10

    kingship, theory of ….9, 18, 82, see also vicar of God; church; common utility; arbitrary rule

    above the law….. 11, 12, 18, 86, 136

    divine right …117, 150, 165, 205, 265

    fountain of justice…………….. 10, 28

    minority ….22, 66, 69, 72, 73, 78–90, 108, 127, 130–32, 138, 141

    non obstante…………….. 68, 86, 164

    paradox……………………………….. 29

    per perceptum domini regis …59, 77, 153

    per voluntatem ….10, 48, 66, 184, 233, 268

    placing government in council …72, 73, 78, 131

    prerogative …..127, 128, 152, 154, 265

    proceedings against king or his ministers  …..57, 58, 81, 93, 97, 108, 128, 136, 153

    quo warranto……………… 68, 76, 80

    quod habet vigorem legis principi placuit ….10

    regency ….45, 66, 67, 69, 74, 78, 87, 93, 108, 124, 127, 131, 138

    separate capacities……. 95, 107, 150

    succession, conciliatory attitude …67, 87, 130, 134, 141

    two bodies…………………….. 8, 9, 11

    vicar of God ….9, 11, 33, 58, 165, see also church

    gratia Dei………………. 10, 16, 29

    voluntas princepis….. 29, 44, 57, 153

    knights and burgesses ….75, 76, 79, 103, 106, 107, 110–12, 123, 142

    L

    Lackland, King John ….1, 16, 25, 35, 36, 44–66, 69, 87, 90, 139, 144

    Lancaster, Henry of…………….. 106, 130

    Lancaster, Thomas of…… 104, 105, 129

    Langton, Stephen………………….. 51, 52

    Lapsley, Gaillard T…. 107, 125, 128, 129

    law of the land ….2, 42, 57, 59, 60, 69, 100, 101, 115–28, 154, 182–264,  see also due process of law; Magna Carta

    concept includes Parliament’s acts 155

    Leges Edwardi………………………. 52, 55

    Leges Henrici Primi……………. 31, 52, 55

    legibus solutus …..8, see kingship, theory of sub proceedings against king

    Liberty of Conscience or Declaration of Indulgence ….162

    Liebermann, Felix……………………….. 27

    Lindsay v. Commissioners, 2 S.C.L. 38 (Ct. App. 1796)…..209, 212–14

    Locke, John…… 166, 167, 207, 233, 267

    Longchamp, William…………. 45–47, 63

    Lords Appellant…………………. 132, 133

    Lovejoy, David S……………………….. 168

    Loving v. Virginia, 388 U.S. 1 (1967) .259

    Luscombe, D.E……………….. 7, 9, 25, 50

    Lyon, Bryce …..20, 27, 28, 32, 34, 35, 37, 38, 46

    M

    Maddicott, J.R. 15, 27, 34, 55, 67, 72, 73, 79, 87, 90, 96, 98, 102, 105

    Madison, James…………… 173, 180, 235

    Magna Carta…. 2, 17, 24, 48–64, 124–26, 137, 139, 143, 154, 157, 161, 167, 169, 202, 203, 230, 231, 265, 266

    Articuli super Cartas ….71, 89, 98, 101, 119, 139

    Chapter 12………………… 55, 56, 137

    Chapter 39 ….2, 55, 57, 60, 117, 137, 183, 266

    Chapter 40……………………………. 77

    Chapter ….61 55, 61, 62, 65, 67, 73, 94, 97, 137, 138

    Confirmatio Cartarum of 1297 ….17, 88, 98, 268

    confirmation of ….55, 70, 71, 78, 88, 97, 99, 112, 123, 125, 134, 138, 140, 143, 144, 158

    taxes………… 67, 71, 88, 123, 138

    foundation for statute 138, 142, 143, 205

    Magna Carta as a bargaining chip ….71, 79, 138

    modify………… 71, 84, 100, 157, 231

    Runnymede……………………… 54, 65

    spirit of………………………………… 71

    Maitland, Frederic……….. 19, 22, 24, 83

    Malcolm, Joyce Lee…………….. 150, 158

    Markus, R.A………………………………. 14

    Marshall, John………………………….. 234

    Mason, George………………….. 181, 182

    Matthew……………………. see also Bible

    Mayo v. Wilson, 1 N.H. 53 (1817) 198, 201

    McConnell, Michael W….. 186, 201, 257

    McKean, Thomas………………………. 234

    McKechnie, William Sharpe… 49, 53–55

    McKisack, May… 110, 111, 123–25, 130

    medieval political theory……………….. 5

    Merciless Parliament ….130, 133,  see also Richard II

    Milsom, S.F.C………………………. 76, 117

    Morris, Colin …….6, 7, 9, 46, 50, 51, 85, 107

    Murray v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856)……228, 229

    Musson, Anthony… 37, 81, 98, 112, 134

    Myers, A.R………………………….. 131–34

    N

    natural law 8, 10, 13, 14, 33, 93, 95, 136, 145, 233, see also Bracton

    Necessary and Proper Clause………. 181

    necessity, law of …..see also common utility; kingship sub separate capacities

    Nelson, Janet…………………………….. 17

    Nicol, D.M…………………………………. 10

    Norman Conquest …14, 17, 21, 22, 24, 26, 27, 30, 60, 66

    William the Conqueror……………. 30

    Normandy………………….. 45, 49, 50, 69

    Northwest Ordinance…………. 183, 236

    Notestein, Wallace……………………. 149

    O

    Obergefell v. Hodges, 576 U.S. — (2015) ….261

    ordeal ….14, 22, 38, 40, 61, see also judicial proofs

    Ordinances ….71, 89, 98, 99, 101, 104–06, 110, 119, 123, 125

    Baronial Declaration……………….. 95

    Ordainers ….80, 125, 127, 132, 140, 142, 268

    right and reason ….99, see also competition over right, reason, utility, and necessity

    original writs…….. 33, 77, 118, 121, 145

    register of writs……………………… 81

    Ormrod, Mark W…..37, 81, 98, 111, 112, 134

    Osgood, Herbert L…………………….. 168

    P

    Palmer, Robert C………………………… 25

    Paper Constitution……. 72, 73, 132, 138

    Parliament …..see also High Court of Parliament

    participatory government ……..2, 3, 29, 160, 165, 170, 179, 185, 197, 207, 232, 243, 252, 257, 264, 267, 268, see also High Court of Parliament; arbitrary rule; Constitution; fundamental law

    Paterson, Justice ….208, 211, see also vested property interests; judicial activism

    petitions. ….12, 62, 63, 70, 75–87, 98, 100, 103, 110–22, 125–44, 158, 160, 163, 229

    Commons’ petitions… 111, 112, 142

    grace ..10, 13, 16, 28, 48, 81, 82, 116, 117, 142, 160, 163

    hallmark of the English Constitution …110

    hearers………………………….. 83, 115

    Petition of Right …82, 143, 152, 156, 158, 160, 161, 163, 187, 231

    right to…………… 134, 163, 170, 233

    Plucknett, Theodore F.T. …..7–117, 31, 84, 100, 129, 130, 132, 133, 148, 153, 162, 165, 233

    police power……………………… 241, 245

    Pollard, A.F…………………………………. 8

    Poole, Austin Lane ….17, 22, 23, 31, 35, 37, 38, 43, 44–66

    positive law …..8, 10, 11, 13, 18, 32, 60, 86, 96

    Post, Gaines…………… 10, 11, 13, 18, 88

    Powell v. Pennsylvania, 127 U.S. 678 (1888) ….248

    Powicke, Sir Maurice …..18, 59, 66–71, 76, 78–90, 121

    prerogative ….see also kingship, theory of

    Prestwich, Michael ….88, 89, 91, 98, 105, 110, 123, 125

    privacy, right to …3, 211, 255, 257, 258, 260

    Privy Seal……….. 89, 100, 101, 119, 145

    Procope, John………………………… 7, 10

    Provisions of Oxford ….101, see also Baronial Reform Period

    Q

    Queen Isabella and Roger Mortimer ….107

    querelae……………….. 72, 76, 80, 81, 89

    R

    Rakove, Jack N…………………… 172, 174

    rational basis…. see also judicial review

    reason of sin ….see also Christian appeals; church

    reasonableness ….see also judicial activism; church sub reason

    recognition……………………… 37, 39–41

    regency…… see also kingship, theory of

    Relf, Frances Helen …149, 152–54, 158, 160, 161

    representative government …2, 3, 171, 233, 264

    republican principles …171, 196, 264, 265, 267

    Reynolds, Susan………….. 14, 22, 23, 33

    Richard I……… 34, 44, 45, 47, 48, 62, 73

    Richard II ….3, 99, 109, 128–35, 130, 133, 147, 163, 267

    Richardson, H.G. …14, 15, 18, 23, 25, 34, 49, 58, 63–66, 74, 76, 81, 85–87, 94, 104, 106, 114, 144

    Riggs, Robert E……… 155, 171, 185, 188

    Roberts, Chief Justice John…………. 261

    Robinson, I.S………………… 5, 6, 7, 9, 16

    Roe v. Wade, 410 U.S. 113 (1973) ….259, 261

    Rogers, Alan……………….. 109, 132, 133

    Roman Catholics………………………. 162

    Rothwell, Harry ….2, 46, 52, 54, 56, 61, 65, 72, 88, 89, 92, 94, 98, 106, 184

    Rufus, William……………………………. 31

    rule of law …140, 144, 203, 204, 232, 242, 243, 267, 268, see also due process of law; arbitrary rule; judicial activism

    Russell, Conrad. …151, 153, 157, 158, 161, 162, 164

    S

    Saint Peter………. see also Bible; church

    salus populi suprema lex ….see also commonwealth

    same-sex marriage ….257, 261, 262, see also Obergefell v. Hodges

    Saul, Nigel……………………………….. 130

    Sayles, George O……… 7–117, 146, 160

    Scalia, Justice Antonin……………….. 262

    school desegregation…… 253, 257, 258

    Schwartz, Bernard…………………….. 202

    Schwoerer, Lois G. ….152, 153, 163–66, 233

    scutage…………………………. 56, 66, 137

    Semple, W.H……………………… 9, 17, 50

    Simpson, Hartley………………………. 149

    Star Chamber……………………. 122, 162

    State v. —, 2 N.C. (1 Hayw.) 50 (1794) …192, 232

    statute ….33, 60, 84, 86, 99, 100, 107, 110–22, 128, 143, 144, 154, 164, 231, see also High Court of Parliament

    42 Edward III………………… 156, 231

    annul….. 86, 114, 116, 128, 146, 163

    Edwardian statute………. 84, 85, 157

    equity and the rule of law… 117, 157

    importance of………… 113, 114, 205

    king in council enough for……….. 85

    modify law………………. 84, 157, 231

    ordinance…. 39, 84, 85, 99, 114, 115

    resolution of justice……….. 113, 140

    royal legislation……………………… 33

    suspending and dispensing …10, 152, 162–64, 224, 233, 265, 268

    Statute of 1341…….. 126, 127, 129, 132

    Statute of York………… 15, 93, 102, 106

    Stenton, Doris M………………. 22, 25, 41

    Storing, Herbert J….. 181, 182, 234, 239

    Stratford, Archbishop John 99, 122, 123–25, 128

    Stubbs, William……………………. 15, 246

    Supremacy Clause…………………….. 266

    suspending and dispensing ….see also statute; common utility; kingship sub prerogative

    Sutherland, Donald W…………………. 80

    T

    Tait, James………………………………… 47

    Taney, Chief Justice Roger B. …..229, 230, 245, 253

    taxation without representation ….2, 152, 265, see also arbitrary rule; Constitution

    Thirteenth Amendment………. 241, 253

    Thomas, Kenneth R…………………… 256

    Thompson, Faith ….68, 71, 86, 97, 100, 101, 105, 114, 117, 120, 121, 134, 154

    Tierney, Brian……………… 6, 7, 9, 32, 50

    Tite, Colin G.C……………………. 129, 152

    Tout, T.F… 74, 86, 89, 98, 101, 105, 107, 108, 129, 130

    Treharne, R.F………………………… 71–80

    Trevett v. Weeden (Rhode Island 1786) ….202

    trial by jury ……3, 37, 38, 185, 191–93, 198, 202, 204, 213, 229, 236, 239, see also judicial proofs

    petit jury………………………………. 38

    Trustees of the University of North Carolina v. Foy, 5 N.C. 57 (1805)….214, 216, 217

    Tudors…………….. 3, 122, 135, 145, 148

    Turner, Ralph V. ….11, 35, 43, 44, 46, 48, 55, 56, 58, 59, 61, 63, 67–70, 78, 86

    tyranny ….49, 134, 158, 230, 239, 266–68, see also arbitrary rule; High Court of Parliament; judicial activism

    U

    Ullmann, Walter ….5–16, 28, 29, 32, 33, 34, 60

    ascending theory…………………… 29

    descending theory…………………. 29

    V

    Valente, Claire…………………… 108, 109

    Van Caenegem, R.C…. 26, 31, 33, 38–41

    Vanhorne’s Lessee v. Dorrance, 2 U.S. 304 (1795) ….211, see also vested property interests

    vested property interests ….48, 68, 151, 177, 193, 206, 212, 214, 217, 218, 221–23

    A-to-B laws…………………………. 211

    due process of law……………….. 217

    law of the land………………. 212, 214

    natural law defense of……. 207, 208

    origin of judicial activism…. 206, 211

    representative consent ….151, 206, 210, 211

    takings………………….. 184, 207, 217

    jury required…………………… 208

    just compensation …….183, 191, 208, 212, 213

    necessity………………………… 207

    vicar of God ….see also kingship theory; Bible; Christian empire sub two swords

    vox curiae, vox Dei.……………………. 268

    vox populi, vox Dei …109, see also commonwealth

    W

    Walter, Archbishop Hubert…………… 50

    Warren, Chief Justice Earl …258, 259, 261, see also judicial activism

    Watt, J.A……………………………. 6, 9, 16

    we the people….. see also Constitution

    Webster, Daniel …203–05, 230, 245, 247, 253

    western constitutionalism……. 205, 207

    White, Stephen D…………………. 148–63

    Wilkinson, Bertie …..7–117, 102, 107, 125–27, 130, 134, 135, 140, 141, 143, 145, 211

    Williams, Ryan C. …171, 183, 185, 198, 205, 214, 242

    Witan………………………………………. 27

    written or unwritten constitutions ….33, 35, 60, 62, 84, 203, 212, 217, 220, 224, 239, 248, 258, 267, 268

    Wynehamer v. People, 13 N.Y. 378 (1856)…..217–19, 221, 223, 248

    Z

    Zylstra v. Corp. of Charleston, 1 S.C.L. 382 (Ct. Com. Pl. 1794) ….. 214

     

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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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  • William Pierce provided a biographical sketch of the delegates to the Constitutional Convention of 1787.  I found it amazing how young many of the delegates were.  Or maybe I am just getting old.  Here is a partial list (Pierce used approximate ages, I have corrected the ages via Wikipedia).
    Rufus King, 32
    Nathaniel Gorham, 39
    Elbridge Gerry, 42
    Roger Sherman, 66
    Oliver Ellsworth, 42
    Alexander Hamilton, apprx. 31
    Robert Yates, 39
    John Lansing, Jr., 33
    Dr. Franklin, 81
    Robert Morris, 53
    James Wilson, 45
    Gouverneur Morris, 35
    John Dickinson, 54
    Luther Martin, 39
    General Washington, 55
    George Mason, 61
    James Madison, 36
    Governor Edmund Randolph, 33
    Charles Cotesworth Pinckney, 41
    Charles Pinckney, 29

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  • In a state of nature every individual pursues his own interest; in this pursuit it frequently happened, that the possessions or enjoyments of one were sacrificed to the views and designs of another; thus the weak were a prey to the strong, the simple and unwary were subject to impositions from those who were more crafty and designing. In this state of things, every individual was insecure; common interest therefore directed, that government should be established, in which the force of the whole community should be collected, and under such directions, as to protect and defend every one who composed it. The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established.

    Letters of Brutus, II, 1787

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  • How we take e-mails and texting for granted… Express Riders and Ratification

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  • Print Friendly

    Jonas Phillips to the President and Members of the Convention

     Sires,

     With leave and submission I address myself To those in whome there is wisdom understanding and knowledge.  they are the honouable personages appointed and Made overseers of a part of the terrestrial globe of the Earth, Namely the 13 united states of america in Convention Assembled, the Lord preserve the amen—

     I the subscriber being one of the people called Jews of the City of Philadelphia, a people scattered and despersed among all nations do behold with Concern that among the laws in the Constitution of Pennsylvania [there] is a Clause Sect. 10 to viz—

     I do believe in one God the Creature and governour of the universe the Rewarder of the good and the punisher of the wicked — and I do acknowledge the scriptures of the old and New testement to be given by a devine inspiration—

     [T]o swear and believe that the new testament was given by devine inspiration is absolutely against the Religious principle of a Jew.  and is against his Conscience to take any such oath — By the above law a Jew is deprived of holding any publick office or place of Government which is Contridectory to the bill of Right Sect 2. viz

     That all men have a natural and unalienable Right To worship almighty God according to the dectates of their own Conscience and understanding, and that no man aught or of Right can be Compelled to attend any Relegious Worship or Erect or support any place of worship or Maintain any minster contrary to or against his own free will and Consent nor Can any man who acknowledges the being of a God be Justly deprived or abridged of any Civil Right as a Citizen on account of  his Religious sentiments or peculiar mode of Religious worship, and that no authority can or aught to be vested in or assumed by any power what ever that shall in any Case interfere or in any manner Controul the Right of Conscience in the free Exercise or Religious Worship—

     It is well known among the Citizens of the 13 united States that the Jews have been true and faithful whigs, and during the late Contest with England they have been foremost in aiding and assisting the States with their lifes and fortunes, they have supported the Cause, have bravely faught and bleed for liberty which they Can not Enjoy —

     Therefore if the honourable Convention shall in ther Wisdom think fit and alter the said oath and leave out the words to viz— [“]and I do acknoweledge the scripture of the new testement to be given by devine inspiration[”] then the Israeletes will think them self happy to live under a government where all  Relegious societys are on a Eaquel footing — I solecet this favour for my self my Childreen and posterity and for the benefit of all the Israeletes through the 13 united States of america. 

     My prayers is unto the Lord.  May the people  of this States Rise up as a great and young lion, May they prevail against their Enemies, May the degrees of honour of his Excellencey the president of the Convention George Washington, be Extollet and Raise up. May Every one speak of his glorious Exploits.  May God prolong his days among us in this land of Liberty – May he lead the armies against his Enemeys as he has done hereuntofore—May God Extend peace unto the united states – May they get up to the highest Prosperetys— May God Extend peace to them and their seed after them so long as the Sun and moon Endureth — and may the almighty God of our father Abraham Isaac and Jacob endure this Noble Assembly with wisdom Judgement and unamity in their councells, and may they have the Satisfaction to see that their present toil and labour for the wellfair of the united States may be approved of, Through all the world and perticular by the united States of america is the ardent prayer of Sires

                 Your Most devoted obed Servant,

                            Jonas Phillips, September 7, 1787 

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  • While the Anti-Federalists may have been alarmists with respect to congressional overreaching under the proposed constitution, there is little room for doubt that the Anti-Federalists nailed the Supreme Court problem directly on its head.  Regarding the judicial branch, Brutus commented in 1787 that it is easy to see that “these courts will eclipse the dignity, and take away from the respectability, of the state courts[,] . . . and in the course of human events it is to be expected, that they will swallow up all the powers of the courts in the respective states.”

    Under the expansive central authority, argued Brutus, the national government will reduce the country to one single government as any power reserved to the states will appear to be a clog in the wheel of national government.  “[I]t is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way.”

    Throughout American history, the concept of self-aggrandizement has been repeatedly applied to the unelected judiciary.  Following the enactment of the Fourteenth Amendment, the judiciary became the self-appointed depositary for the protection of life, liberty, and property—a concept rejected by the 39th Congress and by the Framers of the Constitution.  In a republican form of government, the people are always the depository and safeguard of liberty.  Over time, the tension between the Court and the rest of the nation has increased.  Brutus foresaw this problem as a consequence of having no check against the judiciary:

    [Those who are vested with the judicial power] are to be placed in a situation altogether unprecedented in a free country.  They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries.  No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.

    Brutus predicted that the national judiciary would completely subvert the state judiciaries and even the state legislatures.  Brutus argued that under the proposed constitutional system, the judiciary is empowered to explain the Constitution according to the reasoning and spirit without being confined to the words or letters.

    With such freedom, courts will rule against acts of the legislature without any constraint as nothing in the Constitution provides a check against the courts.  “This power in the judicial, will enable them to mould the government, into almost any shape they please.”  “[T]he judgment of the judicial, on the constitution, will become the rule to guide the legislature in their construction of their powers.”

    Brutus argued that with the Court’s liberal constructions of the Constitution, the states will become trifle and unimportant and perhaps not even worth having.

    The formation of the judicial powers in this new system will abolish the state governments and melt the states into one national government.

    Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial.  They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one.  These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them.  In the mean time all the art and address of those who wish for the change will be employed to make converts to their opinion.  The people will be told, that their state officers, and state legislatures are a burden and expence without affording any solid advantage, for that all the laws passed by them, might be equally well made by the general legislature.

    Brutus argued that a proper republican form of government puts construction of the Constitution with the legislature so that if the legislature exceeds its power in constructing the Constitution, the people, from whom they derive their power, could correct their errors

    A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people [choose] at stated periods, should have the power in the last resort to determine the sense of the compact:  if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.

    Letters, 1, 11, 14, and 15  1787-1788

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  • “Every statute is presumed to be constitutional.  The courts ought not to declare one to be unconstitutional, unless it is clearly so.  If there is doubt, the expressed will of the Legislature should be sustained.”

    “We know that this is a power which may be abused; but that is no argument against its existence.  For protection against abuses by Legislatures the people must resort to the polls, not to the courts.”

    Chief Justice Waite, Munn v. Illinois, 94 U.S. 113 (1877).

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  • However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens and that portion must be determined by the legislature. This vital power may be abused, but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the state governments. The interest, wisdom, and justice of the representative body and its relations with its constituents furnish the only security, where there is no express contract, against unjust and excessive taxation as well as against unwise legislation generally.

    Providence Bank v. Billings, 29 U.S (4 Pet.) 514, 563 (1830).

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