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Due Process

Liberty’s Precedents

As we near America’s July birthday, it is useful to remind ourselves that preceding that date in both calendar months and centuries is the June anniversary of the signing of England’s Magna Carta. Comparing and contrasting the Declaration of Independence, which was signed on July 4 in Philadelphia, with the Magna Carta, which was signed on June 15 in a meadow at Runnymede in the south of England, has always been a useful exercise in civic education.

At first glance, most Americans would probably think it’s an apples-to-oranges comparison. While the Declaration speaks of human equality and the natural and universal rights of men, the Magna Carta is an agreement between England’s lords and a monarch, with nary a word about the broader “rights” of the everyday English subject.

And while the Declaration appeals to the “laws of nature and nature’s God,” and “self-evident truths,” to break from British rule, the Magna Carta intends to restore the traditional privileges enjoyed by the barony and Church, while acceding to the monarchy as source of law simultaneously.

In short, the Declaration is a revolutionary document in not only announcing the revolt from London but doing so on the basis of the unprecedented claim of natural rights — not divine ordinance or British customary liberties; in contrast, the Magna Carta looks back in time for the grounds of its pledges and presumes those ancient ways are the just and reasonable.

Nevertheless, the two documents are linked by the fact that they share a similar and immediate practical goal: ending (in the one case) or curtailing (in the other case) what they believed to be the arbitrary rule of a governing monarch. It’s no surprise that the colonists of North America were often quick to cite the precedent of the Magna Carta when discussing and debating their own complaints with London.

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2015 Walter Berns Constitution Day Lecture: The Magna Carta, Due Process, and Administrative Power

Magna Carta is important, argued Philip Hamburger of Columbia Law School recently at AEI, not so much for what it says, but for what it reveals about the enduring danger of absolute power and the repeated constitutional responses in common law countries of its substitute, rule under law. Not only does Magna Carta allow us to trace the ebb and flow of absolute power and the law, but it also allows a proper understanding of due process of law.

Where today due process is most often thought of as a procedural protection for happenings in court, Hamburger invoked Magna Carta to show that due process is meant to also apply to outside the court, specifically administrative tribunals within administrative agencies. Tracing the development of due process from Magna Carta’s Article 39 through a series of 14th century statutes to the Fifth Amendment in the US Constitution, Hamburger argued that the Constitution’s due process clause was designed primarily to be an obstacle to administrative or extralegal adjudication. The prevalence of administrative power today, he concluded, denotes a practical evasion of due process and an evisceration of the entire concept, and that poses the gravest threat to the Bill of Rights.

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AEI