DOCSLIB.ORG

Due Process As Separation of Powers

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Due Process As Separation of Powers NATHAN S. CHAPMAN & MICHAEL W. MCCONNELL Due Process as Separation of Powers AUTHORS. Nathan S. Chapman, Executive Director, Stanford Constitutional Law Center, Law Fellow, Stanford Law School; Michael W. McConnell, Richard and Frances Mallery Professor of Law, Stanford Law School. Thank you to Samuel Bray, William Baude, Robert Gordon, Larry Kramer, and Matthew Shapiro. 1 Due Process as Separation of Powers INTRODUCTION I. DUE PROCESS AND THE LEGISLATURE IN ENGLISH AND EARLY AMERICAN LAW A. Magna Charta and Coke B. English Disputes About Parliament’s Power C. Revolutionary Arguments that Parliament Violated the Law of the Land D. Early State Experiments with Legislative Supremacy 1. Holmes v. Walton 2. Trevett v. Weeden 3. Bayard v. Singleton 4. Alexander Hamilton on Due Process II. DUE PROCESS OF LAW AS A CONSTITUTIONAL CONSTRAINT ON AMERICAN LEGISLATURES A. The Constitution 1. General and Specific Provisions 2. The Due Process Clause B. Early Due Process Interpretations 1. Laws Purporting to Authorize Due Process Violations 2. Special or Retrospective Bills that Deprive Persons of Rights III. APPLYING DUE PROCESS AS SEPARATION OF POWERS A. Analysis B. Applications 1. Modern “Substantive” Due Process 2. Legislative Acts that Violate Due Process 3. Executive Acts that Violate Due Process CONCLUSION INTRODUCTION Scholars are showing renewed interest in the original understanding of the Due Process Clauses, and especially in whether that understanding is consistent with the Supreme Court’s modern practice of substantive due process. Not long ago, most scholars accepted John Hart Ely’s clever dismissal of the idea of substantive due process as an 2 “oxymoron,” on the order of “green pastel redness” 1 –with those of an originalist bent concluding that substantive due process is illegitimate 2 and those of a substantive due process bent concluding that originalism is wrongheaded. 3 Now, with the prestige of originalist interpretation (of various types) on the rise, even on the progressive left, 4 we are seeing more serious attempts to discern whether an educated member of the public at the time of the founding, 5 or perhaps at the time of adoption of the Fourteenth Amendment, 6 would have understood the phrase “due process” as having a substantive component,7 meaning that judges would invalidate legislation on the basis of their perceptions of natural justice, reasonableness, or inalienable natural rights. Opponents of substantive due process tend to argue that due process meant neither more nor less than that officers of the government must follow the law of the land. Because Parliament, and Congress and state legislatures after Independence, is the ultimate authority as to what the law of the land is, having power either to “declare” the common law or to legislate changes to it, by definition all acts of Parliament or the 8 legislatures conformed to the law of the land, and due process did not restrict them. 1 JOHN HART ELY , DEMOCRACY AND DISTRUST : A THEORY OF JUDICIAL REVIEW 18 (1980). See also Ellis v. Hamilton, 669 F.2d 510, 512 (7th Cir. 1982) (Posner, J.) (“substantive due process” is an “oxymoron”). 2 See, e.g. , Raoul Berger, “Law of the Land” Reconsidered , 74 NW. U.L. REV . 1 (1979); ROBERT BORK , THE TEMPTING OF AMERICA (1990); RAOUL BERGER , GOVERNMENT BY JUDICIARY : THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 21-44 (1997). 3 LAURA KALMAN , THE STRANGE CAREER OF LEGAL LIBERALISM 71-77 (1996); see, e.g., MICHAEL PERRY , THE CONSTITUTION , THE COURTS , AND HUMAN RIGHTS : AN INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING BY THE JUDICIARY (1982) (defending judicial lawmaking on extraconstitutional grounds); RONALD DWORKIN , TAKING RIGHTS SERIOUSLY (1977); Thomas C. Grey, Do We Have an Unwritten Constitution? , 27 STAN . L. REV . 703 (1975) (courts should not rely exclusively on the written constitution); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought , 30 STAN . L. REV . 843 (1978) (arguing on historical grounds that there is an unwritten constitution). 4 Lawrence B. Solum, District of Columbia v. Heller and Originalism , 103 Nw. L. Rev. 923, 932 (2009); Keith Whittington, The New Originalism , 2 Geo. J.L. & Pub. Pol’y 599, 605 (2004) (“Broadly originalist arguments are widespread and are increasingly common in liberal and progressive theory.”) (quotation omitted). See, e.g., District of Columbia v. Heller, 128 S. Ct. 2783, 2822 (2008) (Stevens, J., dissenting); AKHIL REED AMAR , AMERICA ’S CONSTITUTION : A BIOGRAPHY (2006); JACK M. BALKIN , CONSTITUTIONAL REDEMPTION 228 (2011); Jack M. Balkin, Framework Originalism and the Living Constitution , 103 Nw. L. Rev. 549 (2009); Jack M. Balkin, Abortion and Original Meaning , 24 Const. Comment. 291 (2007). See also the work of the Constitutional Accountability Center. 5 Frederick Mark Geddicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment , 58 EMORY L.J. 585 (2009) (“law” in “due process of law” was understood to refer to an act that complies with natural law); Robert Riggs, Substantive Due Process in 1791 , 1990 WIS . L. REV . 941. 6 Ryan C. Williams, The One and Only Substantive Due Process Clause , 120 YALE L.J. 408 (2010) (due process of law did not include vested rights or general law theories in 1791, but it did by 1686). 7 CHESTER JAMES ANTIEAU , THE INTENDED SIGNIFICANCE OF THE FOURTEENTH AMENDMENT ch. 18 (1997); James W. Ely, Jr., The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process , 16 CONST . COMMENT . 315 (1999); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought , 30 STAN . L. REV . 843 (1978); Alfred Hill, The Political Dimension of Constitutional Adjudication , 63 S. CAL . L. REV . 1237, 1270-73, 1322-23 (1990);; Cf. Suzanna Sherry, The Founders’ Unwritten Constitution , 54 U. CHI . L. REV . 1127, 1132 (1987); RODNEY L. MOTT , DUE PROCESS OF LAW 34-36, 74-75, 123-24, 159-61 (1926). 8 The most important statement of this position is Justice Hugo Black’s dissenting opinion in In Re Winship, 397 U.s. 358, 378-82 (1970). 3 Under this view, there could be no judicial review of legislation under the Due Process Clause. Supporters of substantive due process on originalist grounds tend to see at least the glimmer of the modern practice in any judicial decision reviewing the acts of a legislature on due process grounds, and in particular, in early decisions holding that legislation violated certain “vested rights.” Ryan Williams recently published an essay in this journal that presents a new twist on these accounts. According to Williams, the evidence shows that there was no widespread acceptance of the application of due process to the legislative branch (hence no substantive due process) as of the adoption of the Fifth Amendment in 1791, but that substantive understandings had become prevalent by adoption of the Fourteenth Amendment in 1868. This leads to the intriguing possibility that, as a matter of original understanding, substantive due process is legitimate as applied to state but not to federal legislation. We believe that none of these positions is entirely correct. To be sure, courts, statesmen, and educated observers used the term “due process of law” and the closely related term “law of the land” in several ways, and often disagreed about its meaning. Nonetheless, the meaning of these terms evolved in discernible ways over a several hundred year period, driven – we argue – by the increasing institutional separation of law-making from law-enforcing and law-interpreting. The separation of legislative, executive, and judicial powers served to clarify what is meant by the rule of law, and by extension the idea of due process of law. 9 Application to the executive came first, and 9 We are not the first to note the importance of the separation of powers in the original understanding of due process of law, but not many have given it pride of place, with the notable exception of Wallace Mendelson, A Missing Link in the Evolution of Due Process , 10 VAND . L. REV . 125, 136 (1956) (“Separation with its procedural connotations had been a ready, if narrow, bridge between orthodox procedural due process and the doctrine of vested interests in an age when legislatures habitually interfered with property by crude retrospective and special, i.e., quasi-judicial, measures.”). Mendelson’s thesis is that separation of powers allowed the evolution of due process of law. The causal connection may be more complicated than that: a commitment to the law of the land enabled colonial Americans to argue that Parliament had overreached well before the judicial power had been separated from it. In would appear that separation of powers and due process of law developed together. See infra at ___ Others have recognized that separation of powers was part of how some people thought about due process, but have not attempted to maintain that it was central to a plausible original understanding of it . See Williams, supra note [---] at 424; Harrison, supra note [--], at 520-24; Nathan N. Frost, Rachel Beth Klein- Levine & Thomas B. McAffee, Courts Over Constitutions Revisited: Unwritten Constitutionalism in the States , 2004 UTAH L. REV . 333, 382 (“The doctrine of vested rights grew out of a recognition that when legislatures act like courts, the potential for abuse grows not only by the omission of some particular procedure in question -- such as trial by jury--but also by the departure from separation of powers.”); JOHN V. ORTH , DUE PROCESS OF LAW 48-49 (2003) (“The attempted exercise of [the judicial] power by another branch of government could be described as a procedural violation: just as a man could not be made a judge in his own case, so one who was not a judge could not make judicial rulings.”); John V.
Load more

Recommended publications
  • The 14Th Amendment and Due Process
    The 14th Amendment and Due Process The 14th Amendment to the United States Constitution Section 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Within months of the end of the Civil War, former rebellious Confederate states began passing Black Codes. These laws were designed to restrict the civil rights of recently freed African Americans. Though the 13th Amendment had ended slavery, it did not specifically assure the rights of citizenship. Congress soon passed a Civil Rights Act to assure equal civic participation and protection for black people. But President Andrew Johnson vetoed it. He believed that Congress lacked the constitutional authority to enact the law. Congress overrode the veto, but a new constitutional amendment was needed to make sure that civil rights legislation would be constitutional. This was the 14th Amendment. To rejoin the Union, all rebel Southern states had to ratify the new amendment. Dred Scott (Library of Congress) Declared adopted on July 28, 1868, the amendment nullified (voided) the Supreme Court’s decision in Dred Scott which denied citizenship for black Americans. It also provided a constitutional basis for civil rights legislation. Ultimately the new amendment changed our constitution. The Constitution, in its original form, served only as a restriction on the power of the federal government. The rights and protections against government power in the Bill of Rights did not apply to the actions of state governments.
    [Show full text]
  • Guantanamo, Boumediene, and Jurisdiction-Stripping: the Mpei Rial President Meets the Imperial Court" (2009)
    University of Minnesota Law School Scholarship Repository Constitutional Commentary 2009 Guantanamo, Boumediene, and Jurisdiction- Stripping: The mpI erial President Meets the Imperial Court Martin J. Katz Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Katz, Martin J., "Guantanamo, Boumediene, and Jurisdiction-Stripping: The mpeI rial President Meets the Imperial Court" (2009). Constitutional Commentary. 699. https://scholarship.law.umn.edu/concomm/699 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article GUANTANAMO, BOUMEDIENE, AND JURISDICTION-STRIPPING: THE IMPERIAL PRESIDENT MEETS THE IMPERIAL COURT Martin J. Katz* INTRODUCTION In Boumediene v. Bush,1 the Supreme Court struck down a major pillar of President Bush's war on terror: the indefinite de­ tention of terror suspects in Guantanamo Bay, Cuba. The Court held that even non-citizen prisoners held by the United States government on foreign soil could challenge their confinement by seeking a writ of habeas corpus in federal court, and that the procedures the government had provided for such challenges were not an adequate substitute for the writ." As a habeas corpus case, Boumediene may well be revolu­ tionary.3 However, Boumediene is more than merely a habeas * Interim Dean and Associate Professor of Law. University of Denver College of Law; Yale Law School. J.D. 1991: Harvard College. A.B. 1987. Thanks to Alan Chen.
    [Show full text]
  • In the Service of Others: from Rose Hill to Lincoln Center
    Fordham Law Review Volume 82 Issue 4 Article 1 2014 In the Service of Others: From Rose Hill to Lincoln Center Constantine N. Katsoris Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Constantine N. Katsoris, In the Service of Others: From Rose Hill to Lincoln Center, 82 Fordham L. Rev. 1533 (2014). Available at: https://ir.lawnet.fordham.edu/flr/vol82/iss4/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. DEDICATION IN THE SERVICE OF OTHERS: FROM ROSE HILL TO LINCOLN CENTER Constantine N. Katsoris* At the start of the 2014 to 2015 academic year, Fordham University School of Law will begin classes at a brand new, state-of-the-art building located adjacent to the Lincoln Center for the Performing Arts. This new building will be the eighth location for Fordham Law School in New York City. From its start at Rose Hill in the Bronx, New York, to its various locations in downtown Manhattan, and finally, to its two locations at Lincoln Center, the law school’s education and values have remained constant: legal excellence through public service. This Article examines the law school’s rich history in public service through the lives and work of its storied deans, demonstrating how each has lived up to the law school’s motto In the service of others and concludes with a look into Fordham Law School’s future.
    [Show full text]
  • Religion in the Public Schools November 2019
    Religion in the Public Schools Published online in TASB School Law eSource TASB Legal Services Texas Association of School Boards 512.467.3610 • 800.580.5345 [email protected] Religion in the Public Schools TASB Legal Services Legal Background Several federal and state laws form the foundation that guides public school districts in navigating the complex area of religion in schools. First Amendment The First Amendment to the U.S. Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . .” U.S. Const. amend. I. The First Amendment applies to school districts as political subdivisions of the state through the Fourteenth Amendment. Engel v. Vitale, 370 U.S. 421 (1962). Together, these laws protect private religious expression but prohibit government action to advance, coerce, or endorse religion in the public schools. Plaintiffs may sue the government for violations of the First Amendment through 42 U.S.C. § 1983 (Section 1983). Establishment Clause The First Amendment Establishment Clause, “Congress shall make no law respecting an establishment of religion . ,” prohibits school districts and their employees from establishing religion. U.S. Const. amend. I. Schools must not advance, coerce, or endorse a particular religion or religion over non-religion. Cnty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989). The U.S. Supreme Court has exercised special vigilance over compliance with the Establishment Clause in elementary and secondary schools because “families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.” Edwards v.
    [Show full text]
  • "This Court Doth Keep All England in Quiet": Star Chamber and Public Expression in Prerevolutionary England, 1625–1641 Nathaniel A
    Clemson University TigerPrints All Theses Theses 8-2018 "This Court Doth Keep All England in Quiet": Star Chamber and Public Expression in Prerevolutionary England, 1625–1641 Nathaniel A. Earle Clemson University, [email protected] Follow this and additional works at: https://tigerprints.clemson.edu/all_theses Recommended Citation Earle, Nathaniel A., ""This Court Doth Keep All England in Quiet": Star Chamber and Public Expression in Prerevolutionary England, 1625–1641" (2018). All Theses. 2950. https://tigerprints.clemson.edu/all_theses/2950 This Thesis is brought to you for free and open access by the Theses at TigerPrints. It has been accepted for inclusion in All Theses by an authorized administrator of TigerPrints. For more information, please contact [email protected]. "THIS COURT DOTH KEEP ALL ENGLAND IN QUIET" STAR CHAMBER AND PUBLIC EXPRESSION IN PREREVOLUTIONARY ENGLAND 1625–1641 A Thesis Presented to the Graduate School of Clemson University In Partial Fulfillment of the Requirements for the Degree Master of Arts History by Nathaniel A. Earle August 2018 Accepted by: Dr. Caroline Dunn, Committee Chair Dr. Alan Grubb Dr. Lee Morrissey ABSTRACT The abrupt legislative destruction of the Court of Star Chamber in the summer of 1641 is generally understood as a reaction against the perceived abuses of prerogative government during the decade of Charles I’s personal rule. The conception of the court as an ‘extra-legal’ tribunal (or as a legitimate court that had exceeded its jurisdictional mandate) emerges from the constitutional debate about the limits of executive authority that played out over in Parliament, in the press, in the pulpit, in the courts, and on the battlefields of seventeenth-century England.
    [Show full text]
  • Chapter 6 Constitutional Principles Affecting a Locality's Land Use
    Chapter 6 Constitutional Principles Affecting a Locality’s Land Use Powers 6-100 Introduction The power to regulate the use of land is a legislative power, residing in the state, which must be exercised in accordance with constitutional principles. Board of Supervisors of Fairfax County v. Southland Corp., 224 Va. 514, 297 S.E.2d 718 (1982). A locality’s exercise of its land use powers, particularly the zoning power, invokes numerous constitutional principles: Constitutional Principles That May Be Affected By the Exercise of Local Land Use Powers Procedural due process Free exercise of religion Substantive due process Free speech Equal protection The right to bear arms Just compensation or takings Search and seizure (see section 27-400) Establishment of religion Supremacy (preemption) (see chapter 7) The numerous constitutional principles that may be affected by local land use regulations may have inspired a United States Supreme Court justice to ask in a dissenting opinion: “[I]f a policeman must know the Constitution, then why not a planner?” San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 661, 101 S. Ct. 1287, 1309, 579 fn. 26 (1981) (Brennan, J.). At bottom, in the land use context these constitutional principles seek to ensure: (1) fairness in the procedures; (2) fairness in the regulations; (3) fairness in the implementation of the regulations; (4) protection of certain individual activities; and (5) freedom from certain governmental activities. 6-200 The due process clause The Fifth Amendment to the United States Constitution provides in part that “No person shall . be deprived of life, liberty, or property, without due process of law .
    [Show full text]
  • The Thinness of Catholic Legal Education, a Review of Robert J
    Loyola University Chicago, School of Law LAW eCommons Faculty Publications & Other Works 2019 The Thinness of Catholic Legal Education, a Review of Robert J. Kaczorowski, Fordham University Law School: A History John M. Breen Lee J. Strang Follow this and additional works at: https://lawecommons.luc.edu/facpubs Part of the Legal Education Commons BOOK REVIEW THE THINNESS OF CATHOLIC LEGAL EDUCATION, A REVIEW OF ROBERT J. KACZOROWSKI, FORDHAM UNIVERSITY LAW SCHOOL: A HISTORY JOHN M. BREEN* & LEE J. STRANG* I. INTRODUCTION In his book, Fordham University Law School: A History,' Robert J. Kaczorowski has authored an informative history of Fordham Law School. This highly readable and well-researched volume describes the ups and downs, the triumphs and failures, and the key people and events at Fordham Law School, where the author has served as a faculty member since 1986. The overall story that Kaczorowski tells is one of an urban law school founded in 1905 to serve the professional aspirations of the children of New York's Catholic immigrants-a school that rose from modest beginnings to be among the nation's finest, but then languished in mediocrity for decades due to the syphoning off of revenues by University administrators. This period of unfulfilled potential came to an end in the 1990s, when Fordham Law School returned to elite status through a fairer allocation of resources, the creation of new programs and institutes, the admission of a highly quali- fied, national student body, and the hiring of a more scholarly and produc- tive faculty. Kaczorowski's history is also a welcome addition to the assortment of books that tell the particular histories of individual American law schools,2 in part because Fordham Law School is part of a Jesuit university, and the * Georgia Reithal Professor of Law, Loyola University Chicago School of Law.
    [Show full text]
  • Speakers of the House of Commons
    Parliamentary Information List BRIEFING PAPER 04637a 21 August 2015 Speakers of the House of Commons Speaker Date Constituency Notes Peter de Montfort 1258 − William Trussell 1327 − Appeared as joint spokesman of Lords and Commons. Styled 'Procurator' Henry Beaumont 1332 (Mar) − Appeared as joint spokesman of Lords and Commons. Sir Geoffrey Le Scrope 1332 (Sep) − Appeared as joint spokesman of Lords and Commons. Probably Chief Justice. William Trussell 1340 − William Trussell 1343 − Appeared for the Commons alone. William de Thorpe 1347-1348 − Probably Chief Justice. Baron of the Exchequer, 1352. William de Shareshull 1351-1352 − Probably Chief Justice. Sir Henry Green 1361-1363¹ − Doubtful if he acted as Speaker. All of the above were Presiding Officers rather than Speakers Sir Peter de la Mare 1376 − Sir Thomas Hungerford 1377 (Jan-Mar) Wiltshire The first to be designated Speaker. Sir Peter de la Mare 1377 (Oct-Nov) Herefordshire Sir James Pickering 1378 (Oct-Nov) Westmorland Sir John Guildesborough 1380 Essex Sir Richard Waldegrave 1381-1382 Suffolk Sir James Pickering 1383-1390 Yorkshire During these years the records are defective and this Speaker's service might not have been unbroken. Sir John Bussy 1394-1398 Lincolnshire Beheaded 1399 Sir John Cheyne 1399 (Oct) Gloucestershire Resigned after only two days in office. John Dorewood 1399 (Oct-Nov) Essex Possibly the first lawyer to become Speaker. Sir Arnold Savage 1401(Jan-Mar) Kent Sir Henry Redford 1402 (Oct-Nov) Lincolnshire Sir Arnold Savage 1404 (Jan-Apr) Kent Sir William Sturmy 1404 (Oct-Nov) Devonshire Or Esturmy Sir John Tiptoft 1406 Huntingdonshire Created Baron Tiptoft, 1426.
    [Show full text]
  • Forever on the Installment Plan?
    Fordham Intellectual Property, Media and Entertainment Law Journal Volume 12 Volume XII Number 4 Volume XII Book 4 Article 5 2002 Forever on the Installment Plan? An Examination of the Constitutional History of the Copyright Clause and Whether the Copyright Term Extension Act of 1998 Squares with the Founders’ Intent Kevin D. Galbraith Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Kevin D. Galbraith, Forever on the Installment Plan? An Examination of the Constitutional History of the Copyright Clause and Whether the Copyright Term Extension Act of 1998 Squares with the Founders’ Intent, 12 Fordham Intell. Prop. Media & Ent. L.J. 1119 (2002). Available at: https://ir.lawnet.fordham.edu/iplj/vol12/iss4/5 This Note is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Forever on the Installment Plan? An Examination of the Constitutional History of the Copyright Clause and Whether the Copyright Term Extension Act of 1998 Squares with the Founders’ Intent Cover Page Footnote William Treanor; Martin Flaherty; Elise Clark; wife & family This note is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/vol12/iss4/5 FRMT5.GLBRTH 5/17/02 3:11 PM NOTES Forever on the Installment Plan? An Examination of the Constitutional History of the Copyright Clause and Whether the Copyright Term Extension Act of 1998 Squares with the Founders’ Intent Kevin D.
    [Show full text]
  • Charter Constitutionalism: the Myth of Edward Coke and the Virginia Charter*
    Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers 7-2016 Charter Constitutionalism: The yM th of Edward Coke and the Virginia Charter Mary Sarah Bilder Boston College Law School, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/lsfp Part of the Constitutional Law Commons, Legal History Commons, and the State and Local Government Law Commons Recommended Citation Mary Sarah Bilder. "Charter Constitutionalism: The yM th of Edward Coke and the Virginia Charter." North Carolina Law Review 94, no.5 (2016): 1545-1598. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. 94 N.C. L. REV. 1545 (2016) CHARTER CONSTITUTIONALISM: THE MYTH OF EDWARD COKE AND THE VIRGINIA CHARTER* MARY SARAH BILDER** [A]ll and every the persons being our subjects . and every of their children, which shall happen to be born within . the said several colonies . shall have and enjoy all liberties, franchises and immunities . as if they had been abiding and born, within this our realm of England . .—Virginia Charter (1606)1 Magna Carta’s connection to the American constitutional tradition has been traced to Edward Coke’s insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism.
    [Show full text]
  • The Anti-Federalist Ninth Amendment and Its Implications for State Constitutional Law Calvin R
    University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1990 The Anti-Federalist Ninth Amendment and Its Implications for State Constitutional Law Calvin R. Massey UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Recommended Citation Calvin R. Massey, The Anti-Federalist Ninth Amendment and Its Implications for State Constitutional Law, 1990 Wisconsin Law Review 1229 (1990). Available at: http://repository.uchastings.edu/faculty_scholarship/1130 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. THE ANTI-FEDERALIST NINTH AMENDMENT AND ITS IMPLICATIONS FOR STATE CONSTITUTIONAL LAW CALVIN R. MASSEY* The ninth amendment has, of late, been the focus of much academic re- flection. In this Article, Professor Massey provides a provocative thesis regarding the intended purposes and uses of the ninth amendment. Professor Massey con- tends that the amendment is one of substance, guaranteeing the existence of citizens' rights, both created and preserved in state constitutions. Although in recent years the ninth amendment' has become the topic of considerable academic commentary,2 for the most part courts have ignored the amendment as a source of substantive constitutional rights.3 This general lack of attention, however, has been distinguished * Associate Professor of Law, University of California, Hastings. I express my ap- preciation to the National Association of Attorneys General, at whose annual seminar on state constitutional law I delivered a preliminary version of these thoughts.
    [Show full text]
  • A MEDIEVAL BOOK and EARLY-MODERN LAW: BRACTON's AUTHORITY and APPLICATION in the COMMON LAW C.1550-1640 Ian Williams*, 
    Williams, A Medieval Book A MEDIEVAL BOOK AND EARLY-MODERN LAW: BRACTON'S AUTHORITY AND APPLICATION IN THE COMMON LAW c.1550-1640 Ian Williams*, The thirteenth-century book known as Bracton was first printed in 1569, fifteen years after Glanvill and three decades after Britton1. Despite its relatively late arrival into the list of printed common law books, of all the older common-law books it is Bracton which has tended to occupy the interest of historians. In no small part, this is due to Edward Coke’s later use of Bracton in disputes with James I2. However, much less interest is shown in Bracton’s use in early-modern England more generally, certainly compared to Bracton’s use as a source for thirteenth century law3. This article seeks to correct that imbalance by showing that Bracton was an important source for some early-modern common lawyers, particularly in certain fields. There were a number of impediments to the use of Bracton in the early-modern common law which may have inhibited its reception. The most recent work has suggested that Bracton’s popularity in early-modern England stemmed from Coke’s popularisation of the book by his references to it in his Reports4. In fact, some of the impediments to Bracton’s use were overcome, or overlooked, in the sixteenth and early-seventeenth centuries. Bracton came to have an assured place in the common-law canon even before Coke’s use of the text, although it never became a standard reference work. * Lecturer, University College London; Faculty of Laws, Bentham House, Endsleigh Gardens, London WC1H 0EG, UK; [email protected].
    [Show full text]