June 15, 2015

On the 800th anniversary of the Magna Carta, the Supreme Court talks about the Magna Carta.

"The Great Charter is now an octocentenarian. The document that laid a legal cornerstone for thousands of judicial systems was sealed on June 15, 1215...."

From today's Kerry v. Dinblogged in some detail here — Justice Scalia (joined by the Chief and Justice Thomas) wrote:
The Due Process Clause has its origin in Magna Carta.
As originally drafted, the Great Charter provided that “[n]o freeman shall be taken, or imprisoned, or be dis­seised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land.” Magna Carta, ch. 29, in 1 E. Coke, The Second Part of the Insti­tutes of the Laws of England 45 (1797) (emphasis added). The Court has recognized that at the time of the Fifth Amendment’s ratification, the words “due process of law” were understood “to convey the same meaning as the words ‘by the law of the land’” in Magna Carta. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276 (1856). Although the terminology associated with the guarantee of due process changed dramatically between 1215 and 1791, the general scope of the underlying rights protected stayed roughly constant.

Edward Coke, whose Institutes “were read in the Amer­ican Colonies by virtually every student of law,” Klopfer v. North Carolina, 386 U. S. 213, 225 (1967), thoroughly described the scope of the interests that could be deprived only pursuant to “the law of the land.” Magna Carta, he wrote, ensured that, without due process, “no man [may] be taken or imprisoned”; “disseised of his lands, or tene­ments, or dispossessed of his goods, or chattels”; “put from his livelihood without answer”; “barred to have the benefit of the law”; denied “the franchises, and priviledges, which the subjects have of the gift of the king”; “exiled”; or “fore­ judged of life, or limbe, disherited, or put to torture, or death.” 1 Coke, supra, at 46–48. Blackstone’s description of the rights protected by Magna Carta is similar, al­though he discusses them in terms much closer to the “life, liberty, or property” terminology used in the Fifth Amendment. He described first an interest in “personal security,” “consist[ing] in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” 1 W. Blackstone, Commentaries on the Laws of England 125 (1769). Second, the “personal liberty of individuals” “consist[ed] in the power of loco­ motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; with­ out imprisonment or restraint.” Id., at 130. And finally, a person’s right to property included “the free use, enjoy­ ment, and disposal of all his acquisitions.” Id., at 134.
This was in the context of saying that government had not denied Din due process. The government stood in the way of her living in the United States with her husband, which wasn't an interest that fell within the historical understanding understanding of liberty.

21 comments:

tim in vermont said...

'bout time that rag was buried. We don't need no stinking trials!

How long before men will not be allowed out in public without a female family member to keep them out of trouble?

"Show me the *man* and I will show you the crime!" - Stalin's Secret Police.

Nonapod said...

Historically it's certainly one of the great triumphs of more diffuse power over more centralized power. One of the most important and impactful documents in history

steve uhr said...

What ... no google doodle? Must not be very important.

Drago said...

Nonapod: "Historically it's certainly one of the great triumphs of more diffuse power over more centralized power"

For that reason alone it must be consigned to the dustbin of history in order to make way for the new order, which, in the end, will be exactly like the old, old order. But with cooler tech.

steve uhr said...

I stand corrected .. It is a doodle in UK but not here. Odd.

traditionalguy said...

It seems that the Law of the land was all about Landlord and Tenant relations.

No one could be desseised of his lands is repeated over in 15 ways.

Man owns land. King cannot take man from land or land from man. And then we added the bill of rights thatrepeats no King and Parliament (even if called the President and Congress) can take North American Lands from the American Colonialists except by law.

But Obama's EPA takes land that has water puddles after a rain without law because SCOTUS lets them. Obama hates that Magna Charta thingee.

Anonymous said...

If you read it out in the clear sunlight of day, you'll see it authorized gay sex marriage.

Bob Ellison said...

The power to grant legal-resident status in the USA doesn't seem like a liberty, something ordained by the creator. It seems like a privilege ordained by our national government.

That's not even the attitude the INS took with regard to my German-born (now USA-naturalized) wife over the years, while they ignored our applications, required her to fly over oceans to complete forms, threw out notarized applications and pictures, and generally crapped all over everything. Their attitude was "we're fat, stupid, and drunk, so good luck".

Not that I'm bitter, or anything. But in any complaint against the INS, I tend to want to side with the complainant.

Crimso said...

The Magna Carta was rarely implemented for decades (if not centuries). Periodically, one of the Plantagenet line or one of the many rebellious lords would dust it off and promise to live by it (for political reasons, naturally), but only rarely did so. Most of what we've been told about the old days isn't quite accurate.

traditionalguy said...

Them Unalienable Rights are also part of being born a natural citizen within the Land of America that brave men accumulated with a price:
1) defeat the best Military Power on earth for 8 years. And repeat in 1812.
2) buy the northwest from Napoleon's France.
3) defeat Spain in Texas, Florida, and California.
4) Buy out Russian Czars claims to Alaska after taking Northern California.
5) Threaten to take western Canada, called the Oregon territory, from England by force after the Civil War proved American Military supremacy, and settle at 54 degrees 40 minutes North parallel when The British Empire blinks.

But that was when we defended our borders before Obama ordered them erased like he ordered Israel to erase their border.

Skyler said...

Breyer is reaching. And being a bit disingenuous. He asserts that Kennedy assumes Din has the right claimed, but in fact Kennedy only says that "even if" she has the right claimed, it doesn't matter because she received due process. Kennedy asserts that whether the right exists should not even be answered.

At least that's how I read it in the few minutes I had to review it.

Anonymous said...

Blogger Bob Ellison said...
The power to grant legal-resident status in the USA doesn't seem like a liberty, something ordained by the creator. It seems like a privilege ordained by our national government.


The INS being defunct and becoming DHS aside, I wouldn't blame the government on this one. At least, not the people you dealt with. Ultimately, yes, that government is at fault, but only because we fail to crack down on the illegals. Those who want to skip ahead in the line. They bog down the entire system, making your experience frustrating.

Take the case of reference by Althouse. They said no to her husband. She took it all the way to the Supreme Court. Really? We should be able to say no to anyone we want, for any reason we want, without having to take it all the way to the Supreme Court.

But things have gotten a little funny, haven't they? Now Obama wants to declare who can and cannot live here under what he calls "priorities". Pretty soon you're going to have a legal right as a citizen of the world to enter into the United States.

Ah why not though, right? Burn it down all the faster.

Rusty said...

traditionalguy said...
"Them Unalienable Rights are also part of being born a natural citizen within the Land of America......."

No. They are the birthright of ever person on this planet.

" We hold these truths to be self evident. That ALL men are created equal............."
The creator didn't just create North Americans.

Of course the usual suspects will claim that these unalienable rights, including the right to life, are ours through the benevolence of our government.

Bob Ellison said...
This comment has been removed by the author.
Basil said...

If you want to see left looniness in its highest form, check out the NY Times article on the Magna Carta and the truly insane comments section that follows. Apparently, no lefist has ever taken, much less passed a course in English or American legal history. Truly nuts over there!

HoodlumDoodlum said...
This comment has been removed by the author.
traditionalguy said...

Rusty...The signatory on the Declaration of War, or Independence were speaking for 13 Colonies. The rest of the slaves owned by British Empire wealthy aristocrats had to get their own independence. Fortunately the GD British got a tiger by the tail in Europe called Bonapatre the Corsican tyrant who stole Europe and Egypt. That gave the USA breathing room except for sailors imprisoned in Dartmoor.by the British to die there.

HoodlumDoodlum said...

Recent EconTalk podcast on Magna Carta

Sebastian said...

Rule of law. Nice aspiration. Had its 800 years of fame. Wave it bye-bye. Now we are able to "use" legal tenets as we see fit and "find" rights undreamt of in any old philosophy. It's a brave new world.

n.n said...

The rule of law has been replaced by a pro-choice doctrine. Perhaps it always was, but today it is selective on principle.

William Chadwick said...

To the "liberal" State f*cker, anything that limits--however imperfectly--the power of Der Staat needs to be discarded.