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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  • Republican Liberty

    One cannot deny the importance of the declarations or bills of rights to the people of the American colonies at the time of Independence.  The people during the American Revolution were emphatic about the need for a bill of rights.  When the colonies formed state constitutions, they either included a separate declaration of rights or incorporated specific rights into their state constitutions. Most of these constitutions were adopted in 1776 or shortly thereafter.

    The concept of a declaration of rights comes from a long history of popular advocacy against English authority, typically the king.  Unlike our government today, historically, the English king was the predominant source of authority.  Parliament grew out of the king’s court, a type of executive, judicial, and administrative body.  When the people wanted change or liberties, they petitioned the king.  In the monarchy, the king and his prerogatives served as the fountain of justice.  The king’s sworn oath to a bill of rights helped secure promises from the king in his administration of good government.  This practice gave us a few of the principal sources of the English Constitution, e.g., the Magna Carta, the Petition of Right, and the English Bill of Rights.

    By the period of the American Revolution, both the king and Parliament had a role in colonial affairs.  From the colonists’ point of view, Parliament and the king had marginalized the colonists’ interests, especially concerning commerce and taxation.  Historically, colonists had relied on their charters, and if their charters did not secure their rights, then colonists would rely on natural law or some other borrowed component of the English Constitution.  Just as native Englishmen petitioned the king for redress, colonists too issued declarations of rights and grievances.  The period from the Stamp Act to Independence is replete with such examples.

    With this background, we see why post-Independence colonists were so insistent on securing state bills of rights and later a federal bill of rights.  However, where the logic fall off is what the people’s bills of rights mean in a republican form of government where the people are sovereign.  In the state constitutions, there was no clear indication of how these vague and ambiguous provisions would be enforced.  The state bills of rights do not reflect a hint of judicial review.  From the text of these documents, the only clue as to enforcement is a suggestion that the declarations would be enforced by the people, primarily through frequent elections and other political processes.  Some states provided for the people to elect a Council of Censors to inquire into government abuses and propose reforms.

    The Virginia Declaration of Rights was the first, and by some accounts, the most important state declaration of rights.  The Virginia Declaration  and the excerpts from other declarations show how the statesmen of the day intended to fight oppression in the executive and legislative departments.

    That the Legislative and Executive powers of the State should be separate and distinct from the Judicative; and, that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the law shall direct.

    Virginia Declaration of Rights, Sect. V (1776).  The Virginia Declaration acknowledged that frequent elections, term limits, and reduction back to private life were a means of eliminating oppression in the legislature and executive.  A similar sentiment is reflected in each of the declarations.

    Maryland provided “That the right in the people to participate in the Legislature is the best security of liberty, and the foundation of all free government; for this purpose, elections ought to be free and frequent, and every man, having property in, a common interest with, and an attachment to the community, ought to have a right of suffrage.”  Maryland Declaration of Rights, Sect. V (1776).

    Though not formally a state yet, the people of Vermont too felt that the cure to oppression was frequent elections and removal from office.  “That those who are employed in the legislative and executive business of the State, may be restrained from oppression, the people have a right, at such periods as they may think proper, to reduce their public officers to a private station, and supply the vacancies by certain and regular elections.”  Vermont Declaration of Rights, Sect. VII (1777).

    Massachusetts also had a similar provision as Maryland and Vermont.  “In order to prevent those, who are vested with authority, from becoming oppressors, the people have a right, at such periods and in such manner as they shall establish by their frame of government, to cause their public officers to return to private life; and to fill up vacant places by certain and regular elections and appointments.”  Massachusetts Declaration of Rights, Sect. VIII (1780).

    Massachusetts’s Declaration contained another provision identifying the importance of the constitution and emphasizing that the people ought to have an eye to all these constitutional principles in their choice of legislature.   Massachusetts placed fidelity to the constitution on the shoulders of the voting public.

    A Frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty, and to maintain a free government:  The people ought, consequently, to have a particular attention to all those principles, in the choice of their officers and representatives: And they have a right to require of their law-givers and magistrates, an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of the Commonwealth.

    Massachusetts Declaration of Rights, Art. XVIII (1780); see also Vermont Declaration of Rights, Sect. XVI (1777); New Hampshire, Bill of Rights, Sect. XXXVIII (1783).

    Connecticut did not immediately enact a new constitution but added a declaration of rights to its charter.  The first principle recognized was that the best security for a free and excellent constitution was annual election.  The people were the best source of security for the preservation of their civil and religious liberties.

    The People of this State, being by the Providence of God, free and independent, have the sole and exclusive Right of governing themselves as a free, sovereign, and independent State; and having from their Ancestors derived a free and excellent Constitution of Government whereby the Legislature depends on the free and annual Election of the People, they have the best Security for the Preservation of their civil and religious Rights and Liberties.  And forasmuch as the free Fruition of such Liberties and Privileges as Humanity, Civility and Christianity call for, as is due to every Man in his Place and Proportion, without Impeachment and Infringement, hath ever been, and will be the Tranquility and Stability of Churches and Commonwealths; and the Denial thereof, the Disturbance, if not the Ruin of both.

    Connecticut Declaration of Rights (1776).  New Hampshire provided a provision against oppression and arbitrary powers:

    Government being instituted for the common benefit, protection, and security of the whole community, and not for the private interest or emolument of any one man, family or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government.  The doctrine of non-resistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

    New Hampshire, Bill of Rights, Sect. X (1783).

    Pennsylvania included a connection to taxation and representation in its frame of government.  Section 17: “[R]epresentation in proportion to the number of taxable inhabitants is the only principle which can at all times secure liberty, and make the voice of a majority of the people the law of the land[.]   Pennsylvania also provided for frequent elections to prevent aristocracies.  Section 19.   Finally, Pennsylvania provided for a Council of Censors to be elected by the people every seven years.  The Censors inquired into abuses of government and the constitution and recommended reform.  The Censors could also call a convention if necessary.  Section 47; see also Vermont Constitution, Ch. II, Sect. 44 (1777); Massachusetts Constitution, Ch. VI, Art. X (1780).

    In modern constitutional law, one might claim that bills of rights helped protect the minority from the tyranny of the majority—and that this was a task for the judge and not the legislature.  As we see from the few excerpts above, the people of the states had a very basic answer to oppression: the power of self-government and frequent elections.

    If we could go back in time and survey the people on a definition of “tyranny,” would we receive a response that includes “tyranny of the majority”?  The people of Essex objected to the initial draft of the Massachusetts Constitution and returned a statement of principles essentially demanding a bill of rights.  The town commented on the powers of self-government by majoritarian principles.

    [I]f a fundamental principle on which each individual enters into society is, that he shall be bound by no laws but those to which he has consented, he cannot be considered as consenting to any law enacted by a minority: for he parts with the power of controuling his natural rights, only when the good of the whole requires it; and of this there can be but one absolute judge in the state.  If the minority can assume the right of judging, there may then be two judges; for however large the minority may be, there must be another body still larger, who have the same claim, if not a better, to the right of absolute determination.  If therefore the supreme power should be so modeled and exerted, that a law may be enacted by a minority, the inforcing of that law upon an individual who is opposed to it, is an act of tyranny.  Further, as every individual, in entering into society, parted with a power of controuling his natural rights equal to that parted with by any other, or in other words, as all the members of the society contributed an equal portion of their natural rights, towards the forming  of the supreme power, so every member ought to receive equal benefit from, have equal influence in forming, and retain an equal control over, the supreme power.

    Essex, Result 1778, 1 Bernard Schwarz, the Bill of Rights, A Documentary History 350 (1971).

    Scanning the state declarations, we see that the founding generation recognized that the best security for liberty and constitutional integrity was for the legislature to be frequently brought back down to private life.  Frequent elections, term limits, and other checks and balances served this function.  These documents do not reflect adherence to judicial review, though some degree of the practice was present in the pre- and post-colonial era.  Unprincipled, pre-Revolution radicalism in the judicial and political responses to English authority evolved into political self-government under state and federal constitutions.  With a republican form of government, the people desiring change had access to the laws through their elected representatives.

    The king frequently ignored his sworn oath to declarations of rights, but the representatives responsible to the people at each election would not have much room to ignore bills of rights as enforced by the people.  Moreover, the Revolution was primarily for Independence and self-governance.  Political enforcement of the constitution fits with the first principle of republican liberty.

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