Monday marked the 800th anniversary of the signing of Magna Carta -- the Great Charter -- by King John of England. John was forced to sign the document by his rebellious barons.
Magna Carta is generally regarded as the first
successful attempt to subject the English king to the rule of law. Prior
to it, kings regarded themselves as above the law -- ruling by divine
right. Magna Carta is also the first attempt of the English people at
constitutional law; it is the sire of what we call "due process."
Only three of Magna Carta's 63 paragraphs remain part of English law today. But two have found their way into our U.S. Constitution:
-- "39. No freemen shall be taken or imprisoned or have his property seized 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 or by the law of the land.
-- "40. To no one will we sell, to no one will we refuse or delay, right or justice.
Paragraph 39 essentially appears as our 5th Amendment in the following words:
"No person shall be ... deprived of life, liberty, or property, without due process of law."
Similar language appears in the 14th Amendment:
"... nor shall any State deprive any person of life, liberty, or property, without due process of law."
Magna Carta's Paragraph 40 also appears as: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury"
Similar language appears in the constitutions of every state.
But what was unique about Magna Carta, and what makes it fairly describable as the first constitutional law, was that for the first time a mechanism was written into the document to enforce the King's compliance with his written promises:
"For the better allaying of the quarrel that has arisen between us and our barons, we have granted ... these concessions, and desirous that they should enjoy them ... forever, we give ... them ... security: namely, that the barons shall choose five and twenty ..., whomsoever they will, who shall be bound with all their might ... to cause to be observed, the ... liberties we have granted .... to them by this ... Charter, so that if we, or ... any one of our officers, ... shall have broken any ... of these articles ... and the offense be noticed by four barons, ... the four barons shall repair to us ... and, laying the transgression before us, petition to have that transgression redressed without delay.
"And if we ... shall not have corrected the transgression ... within forty days, ... the four barons ... shall refer that matter to the rest of the five and twenty barons ….
"Those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained."
Paragraph 39 guaranteed what lawyers and judges call "procedural due process" -- that no freeman would be destroyed except by lawful judgment of his peers or by the law of the land (and not by the king's whim!). The specified procedures involved were (a) lawful judgment of peers, and (b) by the law of the land.
Magna Carta did not grant either the barons or freemen any new rights. It guaranteed only the traditional right of all free men not to be destroyed by the king --- absent a trial by the freeman's peers, pursuant to the law of the land. American's refer to that guarantee as "procedural due process" -- the "process" (procedure) that is "due" in the matter.
To the English barons, not being destroyed meant not being subject to capital punishment, imprisonment, ruinous fine, seizure of their property or banishment. That was the original meaning of due process under the 5th and 14th amendments. "No person shall be ... deprived of life, liberty, or property, without due process of law. ..."
To the barons, "liberty" meant freedom from being destroyed except after trial by their peers, by the law of the land.
Around the middle of the 19th century, however, our Supreme Court began to give liberty an expanded meaning beyond freedom from imprisonment.
The court held that Dred Scott's master had liberty to take his slave into a free state, without Scott becoming free. Employers had economic liberty to make contracts with their employees that required employees to work 16 hours a day without government interference. In the 20th century, women were accorded absolute liberty (at least during the first trimester) to abort fetuses. This redefinition of liberty has been called "substantive due process."
Traditional "procedural due process" continues to exist to guarantee that people in America will not be executed, imprisoned or fined without a trial by their peers, in accordance with the law of the land. But "substantive due process" is judge-made law, fashioned by the judges to guarantee other non-traditional rights not mentioned by the Constitution, but which the modern judges feel should have been.
Substantive due process effectively amends the Constitution in the manner other than that prescribed by the Constitution's Article V amendment procedures. That substantive due process is nothing less than a judicial usurpation of power is best proven by the fact that the Dred Scott decision, and the economic due process cases of the 19th century have long since been repudiated by the court, the Congress and the nation.
Substantive due process is the power of judges to behave like the divine right of kings, and rewrite the Constitution to correct the errors and omissions of the founders.
Only three of Magna Carta's 63 paragraphs remain part of English law today. But two have found their way into our U.S. Constitution:
-- "39. No freemen shall be taken or imprisoned or have his property seized 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 or by the law of the land.
-- "40. To no one will we sell, to no one will we refuse or delay, right or justice.
Paragraph 39 essentially appears as our 5th Amendment in the following words:
"No person shall be ... deprived of life, liberty, or property, without due process of law."
Similar language appears in the 14th Amendment:
"... nor shall any State deprive any person of life, liberty, or property, without due process of law."
Magna Carta's Paragraph 40 also appears as: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury"
Similar language appears in the constitutions of every state.
But what was unique about Magna Carta, and what makes it fairly describable as the first constitutional law, was that for the first time a mechanism was written into the document to enforce the King's compliance with his written promises:
"For the better allaying of the quarrel that has arisen between us and our barons, we have granted ... these concessions, and desirous that they should enjoy them ... forever, we give ... them ... security: namely, that the barons shall choose five and twenty ..., whomsoever they will, who shall be bound with all their might ... to cause to be observed, the ... liberties we have granted .... to them by this ... Charter, so that if we, or ... any one of our officers, ... shall have broken any ... of these articles ... and the offense be noticed by four barons, ... the four barons shall repair to us ... and, laying the transgression before us, petition to have that transgression redressed without delay.
"And if we ... shall not have corrected the transgression ... within forty days, ... the four barons ... shall refer that matter to the rest of the five and twenty barons ….
"Those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained."
Paragraph 39 guaranteed what lawyers and judges call "procedural due process" -- that no freeman would be destroyed except by lawful judgment of his peers or by the law of the land (and not by the king's whim!). The specified procedures involved were (a) lawful judgment of peers, and (b) by the law of the land.
Magna Carta did not grant either the barons or freemen any new rights. It guaranteed only the traditional right of all free men not to be destroyed by the king --- absent a trial by the freeman's peers, pursuant to the law of the land. American's refer to that guarantee as "procedural due process" -- the "process" (procedure) that is "due" in the matter.
To the English barons, not being destroyed meant not being subject to capital punishment, imprisonment, ruinous fine, seizure of their property or banishment. That was the original meaning of due process under the 5th and 14th amendments. "No person shall be ... deprived of life, liberty, or property, without due process of law. ..."
To the barons, "liberty" meant freedom from being destroyed except after trial by their peers, by the law of the land.
Around the middle of the 19th century, however, our Supreme Court began to give liberty an expanded meaning beyond freedom from imprisonment.
The court held that Dred Scott's master had liberty to take his slave into a free state, without Scott becoming free. Employers had economic liberty to make contracts with their employees that required employees to work 16 hours a day without government interference. In the 20th century, women were accorded absolute liberty (at least during the first trimester) to abort fetuses. This redefinition of liberty has been called "substantive due process."
Traditional "procedural due process" continues to exist to guarantee that people in America will not be executed, imprisoned or fined without a trial by their peers, in accordance with the law of the land. But "substantive due process" is judge-made law, fashioned by the judges to guarantee other non-traditional rights not mentioned by the Constitution, but which the modern judges feel should have been.
Substantive due process effectively amends the Constitution in the manner other than that prescribed by the Constitution's Article V amendment procedures. That substantive due process is nothing less than a judicial usurpation of power is best proven by the fact that the Dred Scott decision, and the economic due process cases of the 19th century have long since been repudiated by the court, the Congress and the nation.
Substantive due process is the power of judges to behave like the divine right of kings, and rewrite the Constitution to correct the errors and omissions of the founders.
Posted: Friday, June 19, 2015 11:01 pm QuadCitiesOnline
