Magna Carta
The Rule of Law
King John’s reign
April 1199 – succeeds Richard the
Lionheart as King
1207– Pope places England under
Interdict
1209– Pope excummunicates John
1213– Pope authorizes Holy War
against John
Events leading to Magna
Carta
1214 John loses (again) to France;
nobles rebel
January 1215 Charter with churches
John seeks asylum in Temple Church
Magna Carta
Runnymede June 15, 1215
Subsequent Events
August 1215 Pope invalidates Magna
Carta, John repudiates
1216 John dies; Henry III (age 8) is
crowned, William Marshall is
regent
1217 Regent signs revised Magna
Carta
1225 Henry III signs and seals Manga
Carta
King v. Burwell
• Whether the IRS may permissibly
promulgate regulations to extend taxcredit subsidies to coverage purchased
through the federal exchanges, in
addition to state-run exchanges, under
PPACA.
“King John, before he was forced to sign the
Magna Carta, said “the law is in my mouth.”
The IRS said essentially the same thing
when ruling that people could get
ObamaCare subsidies through federally run
Exchanges even though the Affordable Care
Act clearly said it had to be through State
Exchanges.”
Jane M. Orient M.D., Executive Director, Association of American
Physicians and Surgeons
Application of Magna Carta
Principles to Modern America
Separation of Powers/Independent Judiciary
Matthew Wilson
Foundation for fundamental
concepts of our Constitution
1. The separation of powers
2. The birth of the judiciary as a separate arm of
the constitution of England
3. The independence and the incorruptibility of
the judiciary
4. The development of the common law, based
in theory on long tradition and representing
judge-made law
Developing an Independent
Judiciary
Significant Magna Carta Clauses:
• (17) Ordinary lawsuits shall not follow royal court
around, but shall be held in a fixed place
• (39) No free man shall be seized or imprisoned, or
stripped of his rights or possessions…except by the
lawful judgment of his equals or by the law of the land
• (40) To no one will we sell, to no one deny or delay
right to or justice
• (45) We will appoint as justices, constables, sheriffs,
or other officials, only men that know the law of the
realm and are minded to keep it well
Trial by Ordeal
Clause (45) – Law of the Realm
• Significance – Judges would have to apply the law
that was built up by tradition and accepted by the
population
• Law applied by local custom in different areas of
England
• Authorized judges to apply common law
• Enormous shift of power away from King and to the
judges
• Judges had authority to develop common law, but
judges had to exercise restraint
Separation of Powers
• Judicial separation was gradual
– Until the end of the 18th century, judges could be
members of Parliament as well as hold judicial
office
– Separation of judges from the King’s court made it
clear that judges were to operate independently of
the King
Modern Application
• Law suits filed against President Obama
– The Associated Press tallied two dozen: Abbott
"has filed 24 lawsuits against the federal
government since Obama took office — litigation
that has cost the state $2.58 million and more than
14,113 hours spent by staff and state lawyers
working those cases,”
– http://www.huffingtonpost.com/2014/02/20/gregabbott-obama_n_4823180.html
Modern Application
Immigration Executive Order
• State of Texas, et al., v. United States of America,
et al., 1:14-cv-00254
• 17 states jointly claiming that President Obama’s
Executive Order concerning immigration is:
– violating the Constitution's “Take Care Clause,” which
states that the president "shall take care that the laws
are faithfully executed";
– in violation of rulemaking procedures; and
– going to “exacerbate the humanitarian crisis along the
southern border.”
Chief Justice John Roberts
Magna Carta Speech
“An 800-year commemoration invites us to take a long
view. Our American experiment has not reached 1/3 the
age of Magna Carta, but we have given Magna Carta’s core
concepts concrete meaning in a new constitutional
framework. Independent courts have ensured
accountability to the law, fulfilling Magna Carta’s ideal
that no person, no matter how high is above the law. Now
I encourage you as officers of the court to set your sights
on the far horizon and ensure that our legal profession
continues to advance that ideal”
- Chief Justice John Roberts
ABA speech August 11, 2014
First Amendment: Free Exercise + Anti-Establishment
Doug Laycock
Virginia School of Law,
Professor of Religious Studies
Lead Advocate in Hosanna
Tabor
“The Magna
Carta’s main
relevance is as a
rhetorical device
invoked by those
who want to sound
learned.”
Magna Carta’s First Clause
First, that we have granted to God, and by this
present charter have confirmed for us and our
heirs in perpetuity, that the English Church
shall be free, and shall have its rights
undiminished, and its liberties unimpaired. . .
Hosanna-Tabor Evangelical Lutheran Church and
Sch. v. E.E.O.C., 132 S. Ct. 694, 702 (2012)
Controversy between church
and state over religious
offices is hardly new. In
1215, the issue was
addressed in the very first
clause of Magna Carta. . .
That freedom in many cases
may have been more
theoretical than real. . . . In
any event, it did not survive
the reign of Henry VIII, even
in theory. The Act of
Supremacy of 1534, 26 Hen.
8, ch. 1, made the English
monarch the supreme head
of the Church . . .
McCreary County, Ky. v. ACLU of Ky.,
545 U.S. 844, 872 (2005)
“Nor did the selection of posted
material suggest a clear theme that
might prevail over evidence of the
continuing religious object. In a
collection of documents said to be
‘foundational’ to American
government, it is at least odd to
include a patriotic anthem, but to omit
the Fourteenth Amendment, the most
significant structural provision adopted
since the original Framing. And it is no
less baffling to leave out the original
Constitution of 1787 while quoting the
1215 Magna Carta even to the point of
its declaration that “fish-weirs shall be
removed from the Thames.’”
-Justice Souter
Why all the fuss?
Due Process and the Magna Carta
What is left of Magna Carta today?
• The 1297 version was enrolled as one of
England’s first statutes
• In 1965 Parliament appointed the Law
Commission to clean up England’s statutes
• Only three* chapters survived:
– Chapter 1, protecting the Church of England
– Chapter 13, preserving the City of London’s
freedoms and powers
– Chapter 39
Chapter 39
“No freeman shall be taken and
imprisoned or disseised or exiled or in
any way destroyed, nor will we go upon
him nor send upon him, except by the
lawful judgment of his peers and by the
law of the land.”
Meaning of text in 1215
“Freeman” = Earls, Barons, Bishops
“Lawful judgment of his peers” = the
judgment of other Earls, Barons or Bishops
“Law of the land” = Volumes written on
this; there are many possibilities of what
the Barons meant in 1215
“Law of the land” in 1215
The “law of the land” in 1215 provided three
primary ways to resolve a dispute/accusation:
• “Battle” (or “duel”)
• “Compurgation” (the sworn oaths of friends
that you are innocent, or not liable)
• “Ordeal” (cold water, hot iron, hot water)
In short, there was nothing approaching what
we think of as a trial
Best description of “law of the land”
I’ve found:
“[King] John was no longer to take the law into
his own hands: the deliberate judgment of a
competent court of law must precede any
punitive measures to be taken by the King
against freemen of his realm.”
William S. McKechnie, Magna Carta - A Commentary on the
Great Charter of King John (1914)
By 1354, a statute based on Chapter 39 read:
“No man of what state or condition he
be, shall be put out of his lands or
tenements nor taken, nor disinherited,
nor put to death, without he be
brought to answer by due process of
law.”
Citing the 1354 law, only 60 years after
the Fifth Amendment was adopted,
the Supreme Court said:
“The words, ‘due process of law,’ were
undoubtedly intended to convey the
same meaning as the words, ‘by the
law of the land,’ in Magna Charta.”
Den ex dem. Murray v. Hoboken Land & Imp.
Co., 59 U.S. 272 (1855)
Hurtado v. California (1884)
“Applied in England only as guards against
executive usurpation and tyranny, here they
have become bulwarks also against arbitrary
legislation; but in that application, as it would be
incongruous to measure and restrict them by
the ancient customary English law, they must be
held to guaranty, not particular forms of
procedure, but the very substance of individual
rights to life, liberty, and property.”
Progeny of “law of the land”
Right to teach foreign language in school
– Meyer v. Nebraska (1923)
Right to direct child’s education and upbringing
– Pierce v. Soc’y of Sisters (1925)
Right to integrated schools
– Bolling v. Sharpe (1954)
Right to interracial marriage
– Loving v. Virginia (1967)
More recent examples
(all cite Magna Carta):
Burden of proof in juvenile criminal proceedings.
In re Winship (1970)
Right to an abortion.
Roe v. Wade (1973); PP v Casey (1992)
Right to physician-assisted suicide.
Washington v. Glucksberg (1997)
Individual right to bear arms.
McDonald v. Chicago (2010)
So what is left of the Magna Carta
today?
The entire body of US substantive due
process jurisprudence.
Evidence that an originalist view of “due
process” leads to recognition of
substantitive due process?