The “Law of the Land” Clause of Magna Carta, the Supremacy Clause, and Judicial Review | Online Library of Law and Liberty

Magna Carta, Reissue of 1225, in Case in Natio...

Magna Carta, Reissue of 1225, in Case in National Archives Rotunda, 1965 (Photo credit: The U.S. National Archives)

In an interesting article this morning on the Liberty Law Blog, Josh Blackmun looks at the roots of the Supremacy Clause, Due Process, and the Law of the Land. In doing so he draw the comparison between Magna Charta and the Constitution. He says that while it grows one out of the other, it also show a break in continuity. Here’s some excerpts.

During a recent trip to the National Archives, I saw one of the earliest known copies of Magna Carta in existence. And I remembered one of my favorite parts of Magna Carta, the “Law of the Land” clause:

No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.

This pronouncement, that neither life, liberty, nor property can be taken except by the “judgment of his peers or by the law of the land,” is the constitutional predecessor of our Due Process Clause. This also served as a basis for some notion of judicial review. Some argue that this history provides for a substantive component of law, rather than a mere procedural aspect.

But a related thought occurred to me. What is the significance that our Supremacy Clause in Article VI, authored several years before the Due Process Clause was added, uses the phrase “Law of the Land”?

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 Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

That makes the Constitution the absolute framework of American law. That is not really the same thing as Barons, sword in hand, demanding their traditional rights from the king, although it owes a good deal to that scene in Runnymede.

Then there is this, from Federalist 84 by Alexander Hamilton, in which he tells us why the Bill of Rights is not really essential under the new Constitution. His logic is persuasive but, in truth, I’m glad we laid it out explicitly. He says that Article I Section 8 and 9 cover it, he also alludes to these as a heritage of Magna Charta

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

Please do read his article, here: The “Law of the Land” Clause of Magna Carta, the Supremacy Clause, and Judicial Review | Online Library of Law and Liberty.

In essence the point is that the operative phrase WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish…signifies the fact that the people created the government and any right not given it remain with the people.

There are other things that enter into this, and come directly from the Judeo-Christian heritage which we will discuss soon as well.

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3 Responses to The “Law of the Land” Clause of Magna Carta, the Supremacy Clause, and Judicial Review | Online Library of Law and Liberty

  1. Pingback: The “Wolf of Wallstreet” and the Orders of Creation. | All Along the Watchtower

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