The Constitution

Old, Transcript, Constitution, Vintage

The Magna Carta, or Great Charter, is a charter drawn by English noblemen guaranteeing certain English rights and defining English political and civil liberties. It was signed by seal of King John of England on June 15, 1215 in an attempt to guarantee the continuing loyalty of the nobility. While Pope Innocent III nullified the agreement 10 weeks later, the record has been reissued with alterations in 1216, 1217 and 1225. In 1297, Edward I entered the Magna Carta to the statues of this realm, which makes it the first entry on the statute books. While the Magna Carta was initially supposed to protect only the rights of noblemen, it was eventually extended to commoners and served as the foundation for English Common Law.

The Magna Carta included 63 exemptions which served to address the main problems affecting England during the reign of King John including inheritance; debts and the payment thereof after departure; the administration of justice; the levying of taxes; woods, riverbanks and river weirs; and freedom of commerce and travel among others. While the Magna Carta wasn’t originally numbered or split into separate clauses, a numbering system was provided by Sir William Blackstone, in 1759 in a printed edition of the 1215 version of the Magna Carta.

The statute that had remained dormant for several years was revived by Sir Edward Coke in the seventeenth century. Coke served as attorney general for Queen Elizabeth I, chief justice of the King’s Bench for King James I, and as both attorney general and speaker of the House of Commons. Coke touted the Magna Carta as authority for challenging the Stuart kings’ claims of royal prerogative and he interpreted the Magna Carta as an affirmation of the principles of individual liberties and as a statement of English rights held since antiquity. The importance that Sir Edward Coke credited to the Magna Carta was reflected in the legislation of the colonies and his interpretation resulted in the claim of the inviolability of a person’s right to due process of law.

Englishmen who came to the American colonies believed they were entitled to the rights of Englishmen embodied in the Magna Carta and as defined in the English Common Law, and it was upon this frame that the colonists began to build the laws of the land and assert their liberty in the English Crown. Thus, the rights and liberties asserted in the Magna Carta were embodied in the written laws of the colonies, and later into the Constitution and the Bill of Rights.

When framing their State Constitutions, nearly all the original colonies included a statement of their fundamental rights and liberties of man. While the Constitution of 1789 embodied various declarations of the fundamental rights of men, it didn’t include a formal Bill of Rights, like that included in the State Constitutions. Intense debate over the need for a declarative statement outlining the rights of taxpayers ensued. Consequently, Articles three through twelve, known as the Bill of Rights, became the first ten amendments to the Constitution of America.

The Bill of Rights, passed in 1789, and put in effect in 1791, secures the essential rights and liberties of the individual citizen and limits the government’s power in judicial proceedings. A number of these rights and liberties, in addition to the theory of representative government, the idea of a supreme law, and the concept of judicial review descend from an eighteenth-century comprehension of the Magna Carta.

The English concept of liberty of the church served as the foundation for our First Amendment guarantee of freedom of religion. The First Amendment to the Constitution of the United States provides that”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Similarly, Clause 1 of the Magna Carta provides”That the English Church shall be free and shall have her whole rights and her liberties inviolable…” Clauses 62 and 63, which were omitted in the later reissues of the Magna Carta, also reaffirm the freedom of the Church.

Due Process:

The concept of due process was expanded to include the right to bear arms (Second Amendment) and not to be subject to cruel and unusual punishment (Eighth Amendment).

Due process, derived from Clause 39 of the Magna Carta, deals with the administration of justice and the rights of people. Clause 39, which has never been rescinded, provides that”No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison excepting by the legal judgment of his peers, or by the laws of the land.”

Clause 39 guarantees that the administration of justice shall be according to”the laws of this land.” While the concept of”law of the land” is not defined in the Magna Carta, it has over time come to mean the right to trial by a jury of one’s peers, the right to confront one’s accusers, and the right to appeal.

The term”due process of law” first replaced the stage”the law of the land” in 1354 in a statute restating the Magna Carta’s procedural claims. It is this guarantee that’s embodied in the due process clause of the Fifth Amendment. The Fifth Amendment to the Constitution provides that”No individual shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, expect in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Article 1, Section 9 of the Constitution also contains a similar provision. It should also be noted that the Fourteenth Amendment to the United States Constitution, ratified in 1868, also comprises a due process clause.

The Fourteenth Amendment granted citizenship to”all persons born or naturalized in the United States” and forbid states from denying any individual”life, liberty or property, without due process of law” or denying”any person within its jurisdiction the equal protection of the laws.” The provisions of the Fifth Amendment were introduced as a check upon the national government while those enunciated in the Fourteenth Amendment were directed towards the individual states in the Union. Taken together, but the two amendments ensure that the person’s right to life, liberty and property remain inviolate vis a vis both the state and federal government.

The concept of ensuring that the individual’s right to life, liberty and property remained inviolate vis a vis government is further exemplified in the Ninth Amendment to the Constitution wherein it is stipulated that”the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Clearly, the framers of the Constitution intended that the rights that they held before the framing of the Constitution, such as those maintained from the Magna Carta, were not lost nor limited by the Constitution.

As previously mentioned, Clause 39 of the Magna Carta includes the assurance that”no freeman shall be taken or imprisoned… except by the lawful judgment of his peers.” The intent at the time was to induce the king to relinquish judicial authority to peers of the individual on trial. Thus, while the Magna Carta did not consider the jury system that we have in the United States, it did serve as its inspiration. The colonists viewed the right to a jury trial as an important liberty and a basic safeguard of freedom from arbitrary government. Hence the notion espoused in Clause 39 that”no freeman shall be taken or imprisoned… except by the lawful judgment of his peers” was incorporated into the Sixth Amendment to the United States Constitution.

The Sixth Amendment provides that”In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against himto have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” Thus, similar to Clause 39, the Sixth Amendment guarantees a trial by a jury comprised of fellow citizens.

This concept of swift justice is also reflected in the Sixth Amendment in the assurance that”the accused shall enjoy the right to a speedy and public trial.”

While the Sixth Amendment secured a right to a jury trial in criminal cases, it did not apply to civil cases. The Seventh Amendment, however, was made to guarantee a jury trial in civil cases. The Seventh Amendment mandates that”in suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

The rights sought by the barons in 1215, as defined in the Magna Carta, not only found their way into the United States Constitution and the Bill of Rights, but these essential rights may also be found in the jury instructions issued from Judge to jury in the United States. That is, these rights can be seen in the terms presumption of innocence and burden of proof.

Clause 38 of the Magna Carta, afterwards re-numbered 29, provides that”No bailiff, for the future, shall put any man to his law, upon his own simple affirmation, without credible witnesses created for the purpose.” Clause 38’s requirement that no man be put to trial without witnesses found its way into the Sixth Amendment from the assurance that”the accused shall enjoy the right… to be confronted with the witnesses against him.” In our judicial system, however, it is for the jury to decide the credibility of a witness.

Cruel and Unusual Punishment:

During the reign of King John, there existed a concern regarding the severity of the punishment to be rendered. Thus Clause 20 of the Magna Carta was written to make sure that”A free-man shall not be fined for a small offence, but only according to the degree of the offence; and also to get a excellent delinquency, according to the magnitude of the delinquency, saving his contentment… and none of the aforesaid fines shall be assessed, but by the oath of honest men of the vicinage.” To make certain that punishments were not overly excessive, Clause 20 mandated the punishment be consistent with the gravity of the offense. This same principle is expressed in our Eighth Amendment in the guarantee that”Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The longest clause of the Magna Carta, Clause 61, known as the security clause, was the most critical clause affecting King John in 1215. Clause 61 provided that a committee of 25 barons could meet anytime and overrule the will of the King, by force if necessary, if he defied the terms of this Charter, and they could grab his castles and possessions. As this was the first time that such a practice was forced upon a ruling monarch, Clause 61 was a severe challenge to King John’s authority. Unsurprisingly, Clause 61 was omitted from all later reissues of the Magna Carta.

Clause 61 provides in part that”… because we have granted all these things… we being desirous that these things should possess entire and unshaken stability for ever, give and grant to them the security underwritten; namely that the Barons may select twenty-five Barons of the kingdom, whom they please, who shall with their whole power, observe, keep, and cause to be observed, the peace and liberties which we have given to them, and have confirmed by this our present charter… And if we shall not have redresses… the twenty-five Barons… shall distress… us… by the taking of our castles, lands, and possessions…”

Throughout the time of the Tudors, the Magna Carta served as a basis for establishing the first Parliament to help in enforcing the rights claimed by common law. Later, in Elizabethan times, the Magna Carta was used to establish the antiquity of Parliament.

The primary significance of Clause 61 is that it laid the framework for the simple form of government in both England and in the United States. Subsequently, the English governmental system of Monarch, Commons, and Lords provided the legal basis for our system of two houses of Congress and the Presidency. The framers of the Constitution were affected by the constitutional relationship between the Monarch, Commons and Lords in the British governmental system and it is from this system that the legal basis for both houses of Congress and the Presidency, in addition to the notion of checks and balances, was born. The legislative, judicial and executive branches of the government, along with the system of checks and balances, are based in the first few articles of the Constitution.

For the framers of the Constitution, the checks and balances that functioned between the three branches of government were a means to prevent any single branch from overreaching and exceeding its powers. Therefore, the Constitution and the Magna Carta were ready with the same intent in mind. Both files limit government by requiring submission to the law and by requiring recognition of the rights of citizens.

The Tenth Amendment to the United States Constitution provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Therefore, the Tenth Amendment makes it clear that our federal government possesses only those powers granted to it by the Constitution. The states, however, possess all powers which the Constitution neither delegates to our federal government nor prohibits the states from working; said differently, all powers not explicitly delegated to the federal government nor denied to the states, remain with the states or the people.

Thought of a Supreme Law

The Magna Carta has also been credited with providing the foundation for the notion of a higher law. In this regard, it’s regarded as a superior law such that even kings must be subject to the law, and any attempt to invalidate it need not be respected. The concept that the Magna Carta provided the foundation for the notion of a higher law is embedded in Article VI, Paragraph 2 of the United States Constitution. Report VI, Paragraph 2 of the United States Constitution, known as the Supremacy Clause, provides that”this Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the jurisdiction of the USA, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Hence the Supremacy Clause mandates that the Constitution together with all treaties and all national laws made in pursuance of this Constitution represents the”supreme law of the land” in the United States. The Supremacy Clause further mandates that all judges in most countries are bound by this”supreme law of the land,” and that the state courts must refuse to uphold any state law that’s contrary to the”supreme law of the land.” This idea of a supreme law, embedded in the supremacy clause, is enforced by the Supreme Court.

Judicial Review

Clauses 39 and 40, discussed above, also act as a foundation for the idea of judicial review. It’s through judicial review which our courts interpret the meaning and intent of legislation.


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