In the Shadow of the Great Charter

Common Law Constitutionalism and the Magna Carta

Robert M. Pallitto

• Publisher: University Press of Kansas
• Year: 2015
• ISBN:
  9780700620920
• Topic: Politics & International Relations
• Subtopic: Constitutions
• Index: Politics & International Relations

In the Supreme Court's 2008 ruling on whether Guantanamo detainees could be barred from U.S. courts, Justice Anthony Kennedy cited the U.S. Constitution, of course. But he also linked the decision to the Magna Carta. Why would a twenty-first century judge, even under the extraordinary circumstances of the "war on terror, " invoke a document signed by an English king in the thirteenth century? To address this question, as Robert Pallitto does in this clarifying book, is to probe the history of modern civil liberties, and to explore the process by which judges decide individual rights cases. Pallitto's work, with its insight into competing ideas about interpreting the Constitution—"originalism" versus "constitutional common law"—is of critical importance to our understanding of the nation's founding document. Of far more than symbolic significance, the Magna Carta exerts immediate practical influence on legal outcomes, as Justice Kennedy's opinion demonstrates. To explain this, Pallitto first goes into the Charter's origins, history, and nature, especially its explicit use of "the law of the land" to protect subjects' rights and liberty. The Magna Carta's legacy in the United States reaches back to the nation's founding, with even the colonial charters reflecting its influence. But it is in the Supreme Court's reference to the Charter, spanning the institution's full two-hundred years, that Pallitto finds the greatest impact—most frequently inthe principles of due process (in criminal proceedings) and habeas corpus, but in many other provisions as well. And the weight of this impact registers most deeply and clearly in the development of the constitutional common law—the theory that courts should and do interpret and expand on constitutional texts by reference to tradition and precedent rather than to the drafter's original intent. Charting the Magna Carta's influence on the contemporary jurisprudence of individual rights—from the legal thought of the American colonies through exemplary cases over the history of the Supreme Court—this book offers resounding evidence of the evolution and value of abiding principles through which American liberty endures.

1

Introduction

Magna Carta has been preserved not as a museum piece, but as part of the common law of England, to be defended, maintained or repealed as the needs and function of the law required. That so much of what survives is now concerned with individual liberty is a reflexion of the quality of the original act of 1215. It was adaptable. This was its greatest and most important characteristic.
J. C. HOLT, Magna Carta

In a world drastically changed by the 9/11 attacks, Supreme Court justice Anthony Kennedy authored a 2008 legal opinion deciding whether “war on terror” detainees could be barred from U.S. courts. By military order and congressional act, the U.S. government had declared that these detainees, many of whom were confined at the Guantanamo Bay Naval Base, were not entitled to petition the federal courts for release from their confinement. Once they were determined to be properly classified as “enemy combatants,” they would be tried before a military tribunal or simply detained indefinitely. The doors of the federal courts were closed to them.

The detainees claimed that stripping the courts of jurisdiction in this way was unlawful. They sought to file habeas corpus petitions in federal court, following a time-honored procedure in Anglo-American law by which prisoners challenge the government’s authority to hold them. In the United States, habeas corpus is enshrined in constitutional text. The constitution requires that the writ of habeas corpus be available to prisoners at all times unless Congress explicitly suspends it and effectively declares martial law. Because there had been no formal suspension, the detainees reasoned, they were entitled to make habeas corpus petitions and could not be blocked from doing so.

Justice Kennedy agreed and ruled in the detainees’ favor. His majority opinion linked the writ of habeas corpus to the U.S. Constitution, of course, but also to a much earlier document: the Magna Carta, or Great Charter, of AD 1215. For Kennedy, habeas corpus “became the means by which the promise of Magna Carta was fulfilled.”¹ Among its numerous provisions setting forth rules for interactions between King John and the English nobility of the time, the Magna Carta declared in Article 39 that no one would be imprisoned except by the “law of the land.” It was this provision that Kennedy took to contain the “promise” of liberty, a promise that had been redeemed in modernity by the emergence of habeas corpus as an accepted and regularly used form of pleading. He ascribed more than a symbolic significance to the 800-year-old document; he acknowledged its immediate practical effect on legal outcomes. The Constitution requires scrupulous protection of habeas corpus rights, and Kennedy traced that requirement back to the Magna Carta.

Why would the Supreme Court continue, today, to invoke an agreement between an English king and his barons that was made eight centuries ago—and to cite it as a source of individual rights and a limitation on government power? Why, especially, would it do so in the midst of a national security crisis brought on by the 2001 terror attacks? To address these specific questions is to probe the history of modern civil liberties, but it is also to explore the process by which judges go about deciding individual rights cases. First, though, some historical background on the Magna Carta itself is in order.

The Magna Carta’s Origins

The Magna Carta was signed at Runnymede in June 1215. King John met an armed group of barons dressed for war in a meadow on the river Thames. The king gave his seal to the document, and it was signed by a group of barons who represented the rebellious faction. The signing/sealing of the Magna Carta concluded tense and protracted negotiations precipitated by complaints and disputes between the king and the barons regarding the king’s use of power. In the course of the dispute, the rebel barons had taken control of London, and they were actually in possession of the city as they negotiated with the Crown. There is much historical evidence to establish a high level of tension and an imminent threat of violence in 1215 England. In addition to the physical occupation of London by the barons, there were letters of “safe conduct” issued to certain members of the nobility by King John in the weeks leading up to the June 19 ceremony at Runnymede. The king issued these letters so that the nobles could travel freely through the realm without fear of arrest or attack. The need for such documentation suggests a state of hostility between the warring groups. The barons sought guarantees of reform from the king in exchange for a promise that they would remain loyal to him.² About a week before the ceremonial acceptance of the Magna Carta at Runnymede, discussions between King John and the barons had produced a document that J. C. Holt calls the “Articles of the Barons.”³ A copy of this document was retained by Stephen Langton, the archbishop of Canterbury, who served as intermediary between the disputants, and it formed an agreement in principle indicating that progress in negotiations had taken place. The parties then made a “firm peace” at Runnymede on June 19, as the Articles of the Barons became the Magna Carta, and both sides agreed to be bound by its terms. Although a “firm peace” was reached on June 19 as the barons reestablished their loyalty to the king, the pacifying effect of the Charter did not last long. Two months later (after the immediate danger of war had passed), Pope Innocent III annulled it, claiming that the king had only agreed to its terms under duress. Following annulment, hostilities resumed. The Magna Carta was reinstated and reissued several times subsequently, most immediately in 1216, 1217, and 1225. The 1215 text is set forth in the appendix.

The Magna Carta of 1215 memorialized “concessions” made by King John to the barons. Its sixty-three articles cover a range of contested issues between the king and the people, including the following:

• rules for inheritance
• regulation of marriage
• debt collection
• court jurisdiction and procedures
• the proportionality of fines to offenses
• fair and just legal proceedings
• freedom of travel for merchants
• creation and use of “forests”⁴
• restoration of property seized by the Crown
• real property law

These concessions had to do with property rights as well as individual liberties. In fact, these categories overlap: for example, provisions of the Charter establish procedures and schedules for amercements (fines), which amount to deprivation of property but also concern liberty because they are penal in nature. Some of the property issues might appear quite mundane to us today (such as how to select sheriffs to oversee royal forests), but they were important and consequential to the parties involved. Other topics covered, such as the purchasing of marriage rights by one family from another, seem anachronistic to the modern reader, and yet their implications for individual liberty are obvious. At the root of many of the concessions wrought by the Magna Carta was the establishment of the rule of law: “It maintained the principle that authority was subject to law.”⁵ Because the king controlled the availability of legal process and determined what legal claims were cognizable and who could bring them, access to courts was a fundamental element of rule of law. By granting or withholding legal process, the king was mediating justice itself. Subjects expected and sometimes demanded that legal process be available to them.⁶

Kenton Worcester has pointed out that the substantive content of the Magna Carta was foreshadowed in an earlier document issued by King Henry I in 1100 at his coronation. In fact, the barons negotiating with King John in 1215 specifically sought as one of their demands confirmation of the earlier Charter of Henry I.⁷ They sought to have Henry I’s charter reaffirmed by King John. In the end, the Magna Carta “followed the pattern set by the Charter of Henry I in devoting its first section to the liberties of the Church. The next sections, as in Henry’s charter, were concerned with the king’s feudal rights. Magna Carta, like Henry’s charter, represented an attempt to state the detailed implications of the oath to destroy evil and maintain just customs which kings swore at their coronation.”⁸ Although Henry did not use the “law of the land” phraseology, his coronation charter is similar in tone to the Magna Carta: it is conciliatory, and it delineates specific rights that members of the kingdom will enjoy as against the king. Like the Magna Carta, the Charter of Liberties of 1100 announces certain procedures that will be followed regarding marriage, baronial service, collection of debts, and other matters.⁹ Thus, the barons in 1215 were invoking “custom and precedent” by linking their demands with earlier promises made by a long-dead king.¹⁰ Just as the Magna Carta serves as evidence of legal limits on executive power for modern commentators, so did Henry I’s charter stand for limits on royal power as the barons cited it in 1215. Even more than the specific terms, the act of promising publicly to rule justly and to “destroy evil” was difficult to rescind. King John tried to do so as he moved his army north later in the year and resumed a state of war with the barons, but his concessions helped to solidify the notion that kings were constrained by law. As Holt puts it, “Where it concerned justice the Charter asserted broad principles which had their roots deep in the past.”¹¹

Magna Carta’s Legacy in the United States

Throughout the more than 200 years the Supreme Court has been in existence, the record of its decisional law shows the continuing influence of Magna Carta principles. Due process (in criminal proceedings) and habeas corpus are the best known of the principles for which the Magna Carta is cited, and they are the ones that receive the vast majority of attention in this book. Nonetheless, the Court has cited other Magna Carta provisions in a variety of legal disputes. References to the Magna Carta in Supreme Court case law are frequent. Even if passing and extraneous references are excluded, more than a hundred citations by the Supreme Court can still be found.¹² The following is a sampling of decisions citing lesser-known provisions of the Great Charter:

• The Nereide (1815)¹³ (safekeeping of merchants’ goods during war—Article 41)
• South v. Maryland (1855)¹⁴ (limitations on powers of a sheriff—Article 45)
• Kent v. Dulles (1958)¹⁵ (right to travel—Article 42)
• Trop v. Dulles (1958)¹⁶ (revocation of citizenship offends “dignity of man”—Articles 39, 40)
• Klopfer v. North Carolina (1966)¹⁷ (the right to a speedy trial—Article 40)
• U.S. v. Mara (1973)¹⁸ (right to grand jury finding—Articles 39, 40)
• Solem v. Helm (1983)¹⁹ (proportionality of punishments to offenses—Article 20)
• Browning-Ferris Industries v. Kelco Disposal (1989)²⁰ (limitations on fines or damages —Articles 20, 21)
• Idaho v. Coeur d’Alene Tribe (1997)²¹ (ownership and use of navigable waters—Article 33)
• Duryea v. Guarneri (2011)²² (right to petition the government regarding grievances—Article 61)
• Hosanna Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission (2012)²³ (religious freedom—Articles 1, 63)

These citations span the entire history of the United States, and they continue up to the present. In chapter 2, I will show how even the colonial charters reflected the influence of the Magna Carta as colonists claimed certain liberties against the king just as the people in England did. But as the Charter was referenced in Supreme Court decisions it became influential in the development of the constitutional common law.

The Practice of Judicial Interpretation

It is a convention, and perhaps an inevitable obligation, for judges to set forth the grounds on which their decisions are based. This practice safeguards the legitimacy of the court as a public institution and also lends persuasive weight to decisions that stand as precedent to be scrutinized by later courts. It has been clear, at least since Marbury v. Madison was decided in 1803, that judges would regularly cite constitutional text as authority for judicial decisions. And so as judges decide cases (particularly cases involving the limits of state power over individuals), they must construe constitutional provisions such as the Bill of Rights and the institutional grants of power found in Articles I and II. No matter how clear and unambiguous those provisions might appear to the outside observer, there is always room for questions and disagreement among the ultimate arbiters of constitutional meaning who sit on the Supreme Court. One need only compare majority and dissenting opinions in the same case in order to see how sharply different the justices’ interpretive approaches can be. Moreover, many justices have over time spoken publicly about their individual approaches to the work of constitutional interpretation, and so we have a record in the justices’ own words indicating how they go about it. Sometimes there is more than one answer to an interpretive dispute. And sometimes the plain meaning yields a result that is unacceptable or even absurd. Akhil Amar notes that the text of Article I, Section 3 would seem to allow the vice president, as president pro tempore of the Senate, to preside over his own trial on impeachment charges.²⁴ Of course, such an arrangement would make no sense. Amar’s point here is that the written text does not answer all of the questions that arise in the course of disputes over governing. The Constitution cannot be read in isolation from principles and commitments predating the document itself, he argues, and in a general sense this is true whether one adheres to an “original meaning” approach, a “living constitution” approach, or any other methodology of interpretation.

Amar suggests that an “unwritten constitution” exists alongside the written document. In addition to rules rooted in the common law, the unwritten constitution draws on principles of modern political thought and certain documents generated through American history that reflect those principles. Amar includes the Gettysburg Address, the opinion in Brown v. Board of Education, and the Reverend Martin Luther King Jr.’s “I Have a Dream” speech in his list of the texts that help to form the unwritten constitution.²⁵ Of course, once the reader moves outside the text to search for interpretive guidance, the problem of what to include arises. In other words, what counts as part of the unwritten constitution, and how do particular elements (a speech, an interpretive principle) represent more than idiosyncratic choices? How can one say that they stand for things that every...

Table of contents

• Front Cover
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• 1. Introduction
• 2. Early Theoretical Foundations: The Common Law Mind
• 3. The Slavery Question
• 4. Federal Common Law, Legal Realism, and the Magna Carta Tradition: Constitutional Interpretation in the Early Twentieth Century
• 5. The Warren Court, Civil Rights, and the Incorporation Controversy
• 6. The Rehnquist Court and Habeas Corpus Retrenchment
• 7. The War on Terror
• 8. Conclusion
• Appendix: The Magna Carta, 1215
• Notes
• Bibliography
• Index
• Back Cover