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This paper is based on the Walter Berns Constitution Day Lecture delivered by Philip Hamburger at AEI on Thursday, September 17, 2015. Click here to view the event page.
What is Magna Carta? Does it still matter? And why? It cannot matter as law, because even in England, almost none of it is still binding. It is an ancient document, written in a language few can read, on parchments that are brittle and decaying, and even its historical significance is elusive. If ever there were a dead constitution, this is it!
In fact, Magna Carta has often been an object of disdain. Those who like centralized power have long treated Magna Carta as irrelevant. Medieval English kings regularly ignored Magna Carta and therefore were repeatedly asked to reissue it. In the 16th century, the High Commission—an early prerogative or administrative agency—rejected arguments from Magna Carta, saying they were “antiquated . . . and worn out of use.” In the 17th century, Oliver Cromwell allegedly disparaged the document as “Magna Farta.”
Although Magna Carta is nowadays merely an object of historical inquiry, many commentators go out of their way to question whether it ever was really a constitutional charter. They say that it protected not the freedom of the people as a whole, but merely the specialized grievances of the barons. As put by the New York Times, “Magna Carta was a result of an intra-elite struggle, in which the nobles were chiefly concerned with their own privileges.”
It thus merely protected the privileges of the privileged. In most academic and otherwise enlightened circles, it therefore is considered naive to think of it as a constitutional document. One would sound unsophisticated or unknowing if one took it too seriously for constitutional purposes or if one suggested that it addressed enduring problems or principles.
And this brings us to Walter Berns. Writing of another constitutional document—one that is not yet quite dead—he urges us to take the Constitution seriously. Walter was a man of incorruptible integrity. A man not swayed by intellectual fashion and its rewards. A man devoted to intellectual inquiry into enduring truths. A man who understood the importance of our Constitution. A man who recognized the danger of attempts to disparage virtue, liberty, and law. With his example in mind, I want to take Magna Carta seriously as a constitutional document.
Magna Carta still matters, not so much for what it says, as for what it reveals—about an enduring danger and the repeated constitutional responses. Magna Carta was the beginning of the long struggle in common law countries to rein in the threat from absolute power and substitute rule through and under law. It thus allows us to trace the long ebb and flow of absolute power on the one hand and law on the other.
Of particular interest for purposes of this talk, it opens up a window onto a principle that developed shortly afterward—the principle that came to be known as “the due process of law.” Nowadays, the due process of law is most basically a procedural protection for what happens in court, not against what happens elsewhere—not, in particular, against what is done in administrative agencies. Thus, in court you are guaranteed the full due process of law, but in an administrative tribunal, you get only administrative process—a minimal process that is justified as “the process that is due.”
Due process once was more robust. Prerogative adjudication—what nowadays is called administrative adjudication—was an evasion of adjudication in the courts, and due process was the primary response. Rather than merely setting a standard for what happened in court, it required the government, when it engaged in binding adjudication, to work through the processes of the courts.
Magna Carta was the most prominent manifestation of the beginning of this robust response to administrative adjudication, and it thus illuminates the real meaning of due process. It reveals the beginning of a long history in which binding administrative adjudication has been a recurring danger and in which the due process of law has been the primary means of rejecting such adjudication.
There are four parts to this talk. I will discuss, first, Magna Carta; second, the development of due process; third, the destruction of due process; fourth, some counterarguments.
The Walter Berns Constitution Lecture Series
A scholar of political philosophy and constitutional law, Walter Berns wrote extensively on issues of American government and its founding principles. He was the author of 10 volumes and published widely in professional and popular journals and America’s leading newspapers. He was the John M. Olin University Professor Emeritus at Georgetown University and served as a resident scholar at AEI. He taught at Louisiana State University, Yale University, Cornell University, Colgate University, and the University of Toronto. He earned his master’s and doctorate degrees in political science at the University of Chicago. Berns served on the National Council on the Humanities from 1982 to 1988 and on the Council of Scholars in the Library of Congress from 1981 to 1985. He was also a delegate to the United Nations Commission on Human Rights. He was awarded the National Humanities Medal in 2005.
In September 2011, AEI President Arthur Brooks announced that henceforth the Program on American Citizenship’s annual Constitution Day celebration would be named in honor of Walter Berns in appreciation of his scholarly legacy in this field and his many years of contributing to the work of the AEI.
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