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Our due process debt to Magna Carta.

June 15, 2015, marked the 800th anniversary of Magna Carta, (1) a document whose foundational influence on the freedoms enjoyed under our Anglo-American systems of government and jurisprudence cannot be overstated.

The reason for such unalloyed praise is quite simple. Magna Carta is the first English document that codified limitations on the arbitrary power of government. Much like the United States' Constitution that followed it 573 years later, Magna Carta imposes restrictions on governmental action but demands nothing of the nation's citizens in return. Contrast this, for example, with the admonitions of those Ten Commandments that directly regulate the thoughts (2) and actions (3) of the citizenry, or with Justinian I's Corpus Juris Civilis, which, while providing certain individual protections, placed few, if any, restraints upon governmental action.

Although universal obedience to the law was not unique to 13th century England, (4) Magna Carta was the first codification of such a principle, explicitly stating that all persons, (5) including for the first time the king, (6) were subject to the law of the land. It is also the first written statement of the right to due process and habeas corpus. Magna Carta's Clauses 39 and 40 (7) state that:

39. No free-man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. 40. To no one will we sell, to no one deny or delay right or justice. (8)

King Edward III signed the Liberty of Subject Act 139 years after Runnymede, fixing the concepts of Clauses 39 and 40 into the common law and, in updating the translation from Latin, gave us that vital expression, "due process of the law." The statute, cited today as 28 Edw. 3, states that: "No man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law."

In stark contrast to its predecessors, (9) Magna Carta did not arise from the noble intentions of an enlightened ruler, but was imposed upon the government by the country's exasperated populace. A group of rebellious barons, tired of King John's repeated demands for scutage (10) and his inhumane treatment of prisoners, took up arms against the cruel and petty ruler (11) under the banner of the "Army of God." After taking London in April 1215, the baronial army famously met John at Runnymede on June 15 and presented him with a mediation agreement drafted by Stephen Langton, Archbishop of Canterbury, (12) that promised to return London to the Crown in exchange for the king's signature on and adherence to the agreement. Although the rebel movement was soon extinguished, the document itself was not entirely forgotten and was revived several times during the 13th century and beyond.

Most of Magna Carta's clauses have been repealed or rendered moot with the passage of time, (13) but British law still retains the three that grant freedom of the English church, (14) its capital city, (15) and its citizenry. (16) Likewise, the freedoms guaranteed by the U.S. Constitution rely in part on a modified version of Clause 1, (17) and on Clauses 39 and 40. These are incorporated into the body of the Constitution itself (18) and its amendments, (19) and are among the most fundamental of our societal principles.

We live in a nation "with solid pavement under [our] feet, surrounded by kind neighbors," (20) where citizens are rarely if ever "disappeared" and "dissidents" are those across the proverbial aisle. In such a society, it is difficult, if not impossible, to appreciate the profound and far-reaching consequences of the rights that have come down to us from the field at Runnymede. Chief among those rights are the prohibition against the arbitrary taking of life, liberty, or property, and the prohibition against arbitrary incarceration, known to us respectively as due process and habeas corpus.

The Due Process Clause states that "No person shall ... be deprived of life, liberty, or property, without due process of law." (21) It is contained in the Fifth Amendment to the Constitution as a part of the Bill of Rights and "like its forebear in the Magna Carta ... was intended to secure the individual from the arbitrary exercise of the powers of government." (22) In crafting the Due Process Clause, the framers were strongly influenced by Magna Carta's Clause 39, so much so that Justice Story noted that the clause "is but an enlargement of the language of magna charta." (23) Similarly, Judge Dillon remarked in his commentary on the constitutional guaranties of the Fifth and 14th amendments that "[t]his was not new language, or language of uncertain meaning. It was taken purposely from Magna Carta. It was language [that] had stood for more than five centuries as the classic expression and as the recognized bulwark of the ancient and inherited rights of Englishmen to be secure in their personal liberty and in their possessions." (24)

Notwithstanding their reverence for the original, the framers reduced Clause 39's longer phrasing from the cumbersome "seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so," to the much more memorable "deprived of life, liberty, or property." It is a testament to their genius that the framers' more economical use of language did nothing to narrow the reach of the protections thus afforded.

Due process has been described and defined numerous times as the right of all people to be treated in accordance with the law of the land or, more matter-of-factly, as "a course of legal proceedings according to those rules and principles which have been established by our jurisprudence for the protection and enforcement of private rights." (25) In a more inspired vein, Justice Frankfurter noted in his dissent to Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Frankfurter, J. dissenting), that "[i]t is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society." Just in case we didn't get the point, Justice Frankfurter added, "Due Process is that which comports with the deepest notions of what is fair and right and just." (26) Likewise cognizant of the primacy of the right to due process, Justice Cardozo wrote, concerning the due process requirement imposed on the states by the 14th Amendment, that due process is violated if a practice "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." (27) The U.S. Supreme Court has heard over 250 due process cases and, despite differences among the justices as to the breadth of its application, (28) most would agree with Justice Stevens' statement that while no legal document could ever be the source of our basic freedoms, "[t]he Due Process Clause ... stands as one of[the] foundational guarantors in our law." (29)

A citizen possesses only life, liberty, and property. The Constitution protects these elements from arbitrary confiscation, but ironically the threat of such confiscation is also the sole method by which a government may enforce the laws. When set in such a context, the importance--and genius --of due process becomes clear. Clause 39 and its descendant, the Due Process Clause, recognize that laws and their enforcement are essential to a well-ordered society and, most importantly, that a society can be well-ordered only if those laws apply with equal force to the government and the governed. The right to due process of law may, therefore, be more important and far-reaching than even the justices have expressed, for it is alone among the enumerated rights to stipulate the foundation upon which all our other rights are assured. This foundation, this concept of "due process," embodies the principle that whatever a government does to a citizen, it can only do in accordance with a law permitting it to do so and in accordance with the law of the land. Accordingly, governmental infringement upon a person's life, liberty, or property is only possible if and when permitted by the people and their laws and may only be exercised as set forth in those laws.

The Due Process Clause makes it clear that the king is below the law, and its breadth and clarity render it among the most sweeping limitations ever placed on the power of government.

The second of the fundamental guarantees to come down to us from Magna Carta is the writ of habeas corpus. Described as "the most celebrated writ in English law" (30) and as "that great bulwark of our constitution," (31) the habeas corpus act is one of the most important defenses available against illegal and secretive detention and all that it implies. Upon petition by any prisoner, (32) a judge or court may issue a writ of habeas corpus compelling a jailer to produce the prisoner and prove that the incarceration is legal. Habeas corpus, thus, provides the judiciary with a powerful tool against an excessive concentration of power in the executive branch and reinforces the due process clause by providing a remedy when a failure of due process has led to arbitrary or improper incarceration.

Unlike the Due Process Clause, the habeas corpus language is incorporated into the body of U.S. Const. art. I, [section]9, cl. 2, and states that, "[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Although habeas corpus is widely viewed as a right, it is in fact a revocable privilege, and may be suspended by the president with or without the approval of Congress. Habeas corpus suspension has been extremely rare, (33) and is only deemed constitutional if such suspension provides a constitutionally adequate alternative. Most recently, the Military Commissions Act 2006 amended 28 U.S.C. [section]2241 (34) by replacing subsection (e) with a clause that removed jurisdiction for courts "to hear or consider an application for a writ of habeas corpus filed by or on behalf of" alien enemy combatants detained by the United States. Within two years, however, a divided Supreme Court reversed in Boumediene v. Bush, 553 U.S. 723 (2008), on a finding that the amended statute failed to provide a constitutionally adequate alternative. In its opinion, the Court opened with the observation that "protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights," (35) and that "the writ had a centrality that must inform proper interpretation of the Suspension Clause," (36) noting also that freedom from arbitrary imprisonment was one of the basic rights established by Magna Carta. The opinion closed by holding that "[t]he laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law." (37)

In addition to the ever-present possibility of suspension, the writ of habeas corpus is also subject to fluctuating interpretation of its reach. Throughout most of the 19th century, habeas was available only to attack a conviction on the ground that the trial court lacked jurisdiction, but in 1880, the Supreme Court permitted the use of habeas to attack a conviction based on an unconstitutional statute. (38) In 1873, the Court permitted a habeas claimant to challenge a sentence in excess of the statutory limitations, (39) and in 1923, overturned a conviction resulting from a mob-controlled trial. (40) Finally, in Brown v. Allen, 344 U.S. 443 (1953), the Court greatly expanded habeas application, holding that "neither state court determinations with respect to pure law or matters of law application were binding on federal habeas courts." (41) Expansion continued with the 1963 case of Fay v. Noia, 372 U.S. 391 (1963), in which the Court held that a failure to raise an issue during trial did not preclude a subsequent habeas claim, concluding that "a forfeiture of remedies does not legitimize the unconstitutional conduct by which ... a conviction was procured." (42)

This expansion was short-lived. Ten years later, a differently constituted Court held that the failure to raise unconstitutional conduct at trial constituted a waiver of the right to raise that objection through a post-conviction writ of habeas corpus. (43) In 1992, in Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992), the Court held that a habeas petitioner must show good reason for failing to present evidence at trial and actual prejudice as a result of that failure, and two years later, it held that newly discovered evidence alone does not entitle a claimant to federal habeas relief. (44) More recently, Congress imposed further limitations with the passage of the Antiterrorism and Effective Death Penalty Act of 1996, whose restrictions included a one-year deadline to file a petition and far greater deference to state court decisions. It is arguable that the growth in these restrictions represents a reaction to the increasing use of the writ as a systematic last-ditch appeal of all convictions, whether state or federal. Such usage is completely contrary to the use of the writ in its country of origin, where "it is no longer of great practical significance as there are today very few habeas corpus applications," although "it still represents the fundamental principle that unlawful detention can be challenged by immediate access to a judge--even by telephone in the middle of the night." (45)

Restrictions and narrowing notwithstanding, 800 years after John and the barons met, the writ of habeas corpus and its counterpart, the Due Process Clause, continue to assure that our government remains one of circumscribed and limited powers in general accord with deeply held and fundamental societal principles. It is impossible to know whether the Runnymede barons realized the import of their articles 39 and 40, hidden as they were among 61 more prosaic articles, but their brilliance in exacting these rights from the king has provided the basis for personal liberties for eight centuries, to the point where they are now internationally recognized (46) and, for all intents and purposes, axiomatic.

(1) Magna Carta was written in Latin. The English language translation referred to here is available from the British Library, magna-carta-english-translation; Bryan A. Garner, A Dictionary of Modern Legal Usage 541 (2001) ("Magna Carta does not take a definite article.").

(2) Exodus 20:17, King James Bible ("Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbor's.").

(3) Exodus 20:13-15, King James Bible ("Thou shalt not kill; Thou shalt not commit adultery; Thou shalt not steal.").

(4) Adam of Bremen wrote in 1080 that Icelanders have no king except the law. Margaret Clunies Ross, Old Icelandic Literature and Society 184 (2000); see also Thomas J. McSweeney, Writing Fiction as Law: The Story in Gragas (May 14, 2014), available at edu/sites/default/files/microsites/gendersexuality/mcsweeney.gragas.5.14.14.docx.

(5) The original 1215 version of Magna Carta referred to the rights of a "freeman"; the 1354 statute removed the word "free-man," and replaced it with "No man of what estate or condition that he be," a generous expansion that included freemen, villeins, bordars, and cottars. The term "estate" referred to the three estates of the realm: the clergy, the nobility, and commoners.

(6) F. Pollock & F. Maitland, The History of English Law before the Time of Edward I 184 (2d ed. 1898), available at http:// ("[Magna Carta] means this, that the king is and shall be below the law.").

(7) The numbering is a modern addition. The original was written as a single, unbroken text.

(8) These two clauses were combined into a single clause in Magna Carta's 1225 revision.

(9) See, e.g., David Crowther, The Charter of Liberties of Henry II, 1154, Documents in English History (Oct. 27, 2012), available at http://historyofengland.typepad. com/documents_in_english_hist/2012/10/ the-charter-of-liberties-of-henry-ii-1154. html ("I have granted, restored, and by my present charter confirmed to God and the holy church and to all earls, barons and all my men, the concessions, gifts, liberties and free customs which king Henry my grandfather gave and granted to them.... Likewise all the evil customs which he abolished and gave up, I give up and allow to be abolished on behalf of myself and of my heirs.").

(10) Black's Law Dictionary 1348 (6th ed. 1991). In feudal law, a tax or contribution raised by those who held lands by knight's service, toward furnishing the king's army.

(11) Ralph V. Turner, King John: England's Evil King? (1994).

(12) Elemer Hantos, The Magna Carta of the English and of the Hungarian Constitution 36 (1904). Authorship uncertain, but included the archbishop and probably William, Earl of Pembroke.

(13) The National Archives, Magna Carta, None of Magna Carta's clauses was repealed until 614 years later when, in 1829, Clause 26 was repealed by the acts 9 Geo. 4 c. 31 [section]1 and 10 Geo. 4 c. 34 [section]1. The passage of time and growth of the country rendered clauses, such as 23 and 33 moot long before they were eventually repealed: "(23) No town or person shall be forced to build bridges over rivers except those with an ancient obligation to do so; (33) All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast." Clause 23 was repealed by Statute Law (Repeals) Act 1969 (c. 52), Sch. Pt. I, and Clause 33 was repealed by Statute Law Revision Act 1863 (c. 125) and Statute Law (Ireland) Revision Act 1872 (c. 98). Id. Insofar as Clauses 49-53 and 55-59 were temporary measures, they were omitted from the 1225 edition of Magna Carta and from all later editions. See, e.g., Clauses 51 and 58: "(51) As soon as peace is restored, we will remove from the kingdom all the foreign knights, bowmen, their attendants, and the mercenaries that have come to it, to its harm, with horses and arms; (58) We will at once return the son of Llywelyn, all Welsh hostages, and the charters delivered to us as security for the peace."

(14) Magna Carta, cl. 1, which states in part "that the English Church shall be free, and shall have her whole rights and her liberties inviolable." In United Kingdom law as 1297 Ch. 9 25 Edw. 1 cc 1 9 29 (I), available at aep/Edw1cc1929/25/9/contents.

(15) Magna Carta, cl. 13, stating in part that, "[t]he city of London shall enjoy all its ancient liberties and free customs, both by land and by water." In United Kingdom law as 1297 Ch. 9 25 Edw. 1 cc 1 9 29 (IX), available at aep/Edw1cc1929/25/9/contents.

(16) Magna Carta, cl. 39 and 40. In United Kingdom law as 1297 Ch. 9 25 Edw. 1 cc 1 9 29 (XXIX), available at http://www. contents.

(17) Granting freedom to the English church and stating that it shall retain its rights undiminished and its liberties unimpaired in perpetuity. This is also among the first known references to the "ecclesia Anglicana," the English church, itself still a branch of the universal church based in Rome. William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 192 (1914), available at

(18) U.S. Const. art. I, [section]9, cl. 2 ("The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.").

(19) U.S. Const. amend. V, [section]4 ("No person shall ... be deprived of life, liberty, or property, without due process of law...."); U.S. Const. amend. XIV, [section]1, cl. 3 ("[N]or shall any State deprive any person of life, liberty, or property, without due process of law....").

(20) Joseph Conrad, Heart of Darkness, available at files/219/219-h/219-h.htm (reflecting on the difficulty of understanding what the absence of law and order looks like for those living in a civilized society).

(21) U.S. Const. amend. V, [section]4.

(22) Daniels v. Williams, 474 U.S. 327, 331 (1986).

(23) Joseph L. Story, Commentaries on the Constitution of the United States [section]1783 (1833), available at library/reference/story-commentaries-usconstitution/sto-338/.

(24) John F. Dillon, Laws and Jurisprudence of England and America 208 (1894), available at lawsjurisprudenc00dilluoft/lawsjurisprudenc00dilluoft_djvu.txt.

(25) Pennoyer v. Neff, 95 U.S. 714, 715 (1878).

(26) Solesbee, 339 U.S. at 16.

(27) Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

(28) Primarily regarding substantive due process, which Justice Scalia refers to as "judicial usurpation." See, e.g., Chicago v. Morales, 527 U.S. 41, 85 (1999), in which Scalia, J. observed in dissent that, "[t]he entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of so-called 'substantive due process') is in my view judicial usurpation."

(29) McDonald v. Chicago, 561 U.S. 742, 863 (2010) (Stevens, J. dissenting); see also Meachum v. Fano, 427 U.S. 215, 230 (1976) (Stevens, J. dissenting), observing that, "I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations."

(30) 3 William Blackstone, Commentaries [section]129.

(31) 4 William Blackstone, Commentaries [section]431.

(32) Habeas Corpus is codified at 28 U.S.C. [section]2241 (2012). The federal judiciary has made a downloadable Petition for a Writ of Habeas Corpus Under 28 U.S.C. [section]2241, Form AO 242, available at http://www. Forms/AO242.pdf.

(33) The only time the writ was suspended prior to enactment of the Military Com missions Act 2006 was during the Civil War. On April 27, 1861, President Lincoln first suspended the writ of habeas corpus at or near any military line between Philadelphia and Washington, followed on May 10 by an order applicable to part of the Florida coast and on July 2 by an order authorizing suspension between Philadelphia and New York. On September 24, 1862, Lincoln issued a proclamation imposing martial law for the duration of the war and stating that, "the writ of habeas corpus is suspended in respect to all persons arrested or imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any court martial or military commission." It was not until March 3, 1863, that Congress passed the Suspension Act, providing congressional support to Lincoln's actions. See James A. Dueholm, Lincoln's Suspension of the Writ of Habeas Corpus, J. Abraham Lincoln Ass'n 48-51 (Summer 2008), available at cgi/p/pod/dod-idx/lincoln-s-suspensionof-the-writ-of-habeas-corpus.pdf?c=jala;i dno=2629860.0029.205.

(34) 28 U.S.C. [section]2241 (2012) (power to grant writ).

(35) Boumediene, 553 U.S. at 725.

(36) Id.

(37) Id. at 798.

(38) Ex Parte Siebold, 100 U.S. 371, 377 (1880). This brief outline is drawn from Wright v. West, 505 U.S. 277, 285-87 (1992).

(39) Ex Parte Lange, 85 U.S. (18 Wall.) 163 (1873).

(40) Moore v. Dempsey, 261 U.S. 86, 91-92 (1923).

(41) Evan Tsen Lee, The Theories of Federal Habeas Corpus, 72 Wash. U. L.Q. 151, 162 (1994), available at http://repository.

(42) Fay, 372 U.S. at 428.

(43) Davis v. United States, 411 U.S. 233 (1973); see also Swain v. Pressley, 430 U.S. 372, 381 (1977) ("[T]he substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus.").

(44) Herrera v. Collins, 506 U.S. 390 (1993).

(45) Michael Zander QC, A Brief History of Habeas Corpus, BBC News, Mar. 9, 2005, available at uk_news/magazine/4329839.stm.

(46) Contained within the concept of jus cogens, described as "rules of conduct which proscribe certain attacks on a number of particularly cherished goods of the international community," the referenced "goods" being democracy and the rule of law. See Christian Tomuschat, The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes 430 (2006).

Illustration by Barbara Kelley

Leonard W. Klingen is a board certified construction law attorney and partner at The Barthet Firm in Miami, where he focuses on complex construction claims and related litigation.
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