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 http://ssrn.com/abstract=2374985

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December 2017
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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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  • “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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  • [The principle that all persons by age or sex, birth or color, origin or condition, are equal before the law,] as a broad general principle, such as ought to appear in a declaration of rights, is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our constitution of free government.  But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion, that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law, for their maintenance and security.  What those rights are, to which individuals, in the infinite variety of circumstances by which they are surrounded in society, are entitled, must depend on laws adapted to their respective relations and conditions….

    The proper province of a declaration of rights and constitution of government, after directing its form, regulating its organization and the distribution of its powers, is to declare great principles and fundamental truths, to influence and direct the judgment and conscience of legislators in making laws, rather than to limit and control them, by directing what precise laws they shall make.

    Justice Shaw, Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1849).

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    We are all familiar with the final draft of the Constitution.  But not so many are aware of the fragile state of the union going into the Constitutional Convention.  The Articles of Confederation were ineffective and were being violated by the states.  The union had no effective means of enforcing its provisions.  States were violating federal treaties and disregarding Confederation legislation.  Moreover, the internal strife between North and South and small and large states made reaching compromise extremely difficult.  Eventually, the Framers were able to navigate the complexities by compromising on the manner in which the two branches of Congress voted.  The first branch would be by apportionment, with a number of representatives roughly based on the number of  inhabitants in each state.  The second branch would have two senators per state appointed by the states.  This equality of the states provided a means for the small states to defend themselves and their interests against the majorities of the larger states.  (The method of appointing senators was changed, however, by the Seventeenth Amendment.)  Benjamin Franklin, 81 years old, played a large part in the compromise.  Franklin was universally appreciated for his wisdom.  Here is a quote from him just after the signatures were applied to the final draft:

     The members then proceeded to sign the instrument.  Whilst the last members were signing it[,] Doctr. Franklin[,] looking towards the Presidents Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun.  [“]I have,[”] said he, [“]often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting:  But now at length I have the happiness to know that it is a rising and not a setting Sun.[”]

     2 Max Farrand, The Records of the Federal Convention of 1787, at 648 (3d ed. 1966).

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