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
August 2019
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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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  • [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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  • 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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  • “For the truly great thing about the Magna Carta has been its ability to mean all things to all men—to project itself into the dreams and necessities of ages which the men of 1215 could not even dimly foresee.”  Bernard Schwartz.

    The same thing can be said of the Due Process Clause and the Equal Protection Clause.  To a lesser degree, the quote fits the advocacy via the Privileges and/or Immunities Clauses.  In fact, the same thing can be said about the Judiciary’s living, breathing Constitution and the incorporated Bill of Rights!

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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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  • The Heads of Grievances was the first draft of the Declaration of Rights.  The Declaration was later given statutory form, with a few changes, in the English Bill of Rights.

    1. The pretended power of dispensing or suspending of laws, or the execution of laws by royal prerogative, without consent of Parliament, is illegal.
    2. The commission for erecting the late Court of Commissioners for ecclesiastical causes and all other Commissioners and Courts of like nature are illegal and pernicious.
    3. Levying money for or to the use of the crown by pretence of prerogative, without grant of Parliament for longer time, or in any other manner than the same shall be so granted, is illegal.
    4. It is the right of the subject to petition the King; and all commitments and prosecutions for such petitioning are illegal.
    5. The Acts concerning the militia are grievous to the subject.
    6. The raising or keeping a standing army within this kingdom in time of peace, unless it be with the consent of Parliament, is against the law.
    7. It is necessary for the public safety, that the subjects, which are Protestants, should provide and keep arms for their common defence, and that arms which have been seized and taken from them be restored.
    8. The right and freedom of electing members of the House of Commons, and the rights and privileges of Parliament, and members, as well in the intervals of Parliament as during their sitting, to be preserved.
    9. That Parliament ought to sit frequently, and that their frequent sitting be preserved.
    10. No interrupting of any session of Parliament, till the affairs that are necessary to be dispatched at that time are determined.
    11. That the too long continuance of the same Parliament be prevented.
    12. No pardon to be pleadable to an impeachment of Parliament.
    13. Cities, universities, and towns corporate, and boroughs and plantations to be secured against Quo Warrantos and surrenders, and restored to their ancient rights.
    14. None of the royal family to marry a Papist.
    15. Every king and queen of this realm, at the time of their entering into the exercise of their royal authority, to take an oath for maintaining the Protestant religion, and the laws and liberties of the nation, and that the coronation oath be revived.
    16. Effectual provision to be made for the liberty of Protestants in the exercise of their religion and for uniting all Protestants in the matter of public worship as far as may be possible.
    17. Constructions upon the statutes of treason, and trials and proceedings and writs of error, in cases of treason, to be regulated.
    18. Judges commissions to be made quam diu se bene gesserint; and their salaries to be ascertained and established, to be paid out of the public revenue only, and not to be removed nor suspended from the execution of their office, but by due course of law.
    19. The requiring excessive bail of persons committed in criminal cases, and imposing excessive fines and illegal punishments, to be prevented.
    20. Abuses in appointing sheriffs, and in the execution of their office, to be reformed.
    21. Jurors to be duly impanelled and returned, and corrupt and false verdicts prevented.
    22. Informations in the Court of King’s Bench to be taken away.
    23. The Chancery and other courts of justice, and the fees of office, to be regulated.
    24. That the buying and selling of offices may be effectually provided against.
    25. That upon return of habeas corpuses and mandamus, the subject may have liberty to traverse such return.
    26. That all grants of fines and forfeitures are illegal and void; and that all such persons as procure them be liable to punishment.
    27. That the abuses and oppressions in levying and collecting the hearth money be effectually redressed.
    28. That the abuses and oppressions in levying and collecting the excise be effectually redressed.

    Lois G. Schwoerer, the Declaration of Rights, 1689, appx 2.

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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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