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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  • 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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  • “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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  • Print Friendly, PDF & Email

    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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  • So true:

    “Many years ago Frederic William Maitland poured scorn on what he called ‘aimless medievalism,’ the effort spent on the study of matters historically and ideologically quite irrelevant, if not trivial.  The study of political ideas in the Middle Ages can never incur this charge of antiquarianism, because the governmental and political ideas dominant in the Middle Ages have created the very world which is ours.  Our modern concepts, our modern institutions, our political obligations and constitutional ideas are either direct descendants of those in the Middle Ages, or have grown up in direct opposition to them.”

    Walter Ullmann, Medieval Political Thought 229 (3d ed. 1970).

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  • For Ipad, Iphone, a $6.99 app called Scanner Pro.

    I recently bought Adobe Acrobat for its OCR ability.  Wonderful feature.  But Windows does not index the OCR’d PDF.  You can download an Adobe plugin, Ifilter 9.  You have to change a setting in the environment variables, but it isn’t too difficult.

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