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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Recent Works

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
August 2019
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  • 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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  • In a pleading for the Dartmouth College v. Woodward case, Daniel Webster commented that New Hampshire’s Law of the Land Clause meant:

    By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.  The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society.  Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land.  If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be  the law of the land.  Such a strange construction would render constitutional provisions, of the highest importance, completely inoperative and void.  It would tend directly to establish the union of all powers in the legislature.  There would be no general permanent law for courts to administer, or for men to live under.  The administration of justice would be an empty form, an idle ceremony.  Judges would sit to execute legislative judgments and decrees; not to declare the law, or to administer the justice of the country.

    17 U.S. (4 Wheat.) at 581–82.   

    In Magna Carta and Due Process of Law, I discuss “law of the land,” the Due Process Clause, and Webster’s influence on judicial development in the nineteenth and twentieth centuries.

    Webster bootstrapped “law of the land” with a broader, unknown meaning by giving it an independent source of constitutional oversight reach.  In so doing, Webster violently opened the door to an umbrella construction including principles of fairness and other generalities.  His argument reads:  laws that run afoul of constitutional commands such as prohibiting acts of attainder are not law of the land.  Therefore, “law of the land” provides not for the rule of law but for a substantive review of the quality and character of legislation in order for that law to be law of the land.  Further, substantive review included fairness review among other generalities.  Under this reading, law of the land was an undefined variable inclusive of the Constitution as well as general principles of fairness and justice.

    Burrell, Magna Carta and Due Process of Law, 204-05.

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