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The Magna Carta, due process, and administrative power.

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." (1)

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.

Magna Carta

Magna Carta is a charter or grant, in which King John made concessions to his barons. So, how did he come to meet them at Runnymede and accede to such a document?

King John acquired power after a civil war or a contest for the throne. Already then, the barons and the Church worried about his rapaciousness, and therefore, at his coronation in 1200, he had to issue a coronation charter, promising to limit taxes and takings of church revenues.

John soon distinguished himself with a series of foreign failures. He fought a losing war against France, where by 1204 he had lost Normandy and Anjou. He quarreled with Pope Innocent III about the appointment of bishops and especially that of Archbishop Steven Langton--a dispute that in 1209 led to John's excommunication. And again, in 1214, he was defeated by the French at Bouvines. John therefore was mocked as "King Lackland" and "King Softsword."

These dismal foreign adventures led him into domestic trouble. For example, to support his army, John demanded exorbitant amounts of scutage--a payment (in lieu of military service) from barons who did not fight--and in stretching his authority to raise this money, he revived the concerns that had led to his coronation charter.

Unfortunately for John, he quarreled with both his barons and the Church at the same time. His foreign policy and taxation annoyed the barons; his disputes with the pope over the appointment of bishops annoyed the Church. Most prominent of John's clerical opponents was Stephen Langton--a former academic (known to his students as "Tongue of Thunder"). In 1207, after being elected and appointed over John's objections, Langton became the new Archbishop of Canterbury, and together with some other bishops, he provided the intellectual heft for the ensuing rebellion. John's reign may therefore be considered a vivid illustration of the danger of provoking both the men of power and the men of intellect.

The eventual result in May 1215 was a brief civil war. The key place to be controlled was London, and after Baron Robert FitzWalter took the City of London, John had few options. On June 10, 1215, at Runnymede, alongside the Thames, John made concessions in the Articles of the Barons. Five days later, these were formalized in Magna Carta.

What was the content of Magna Carta? It contained 63 articles, most of which concerned matters that nowadays seem so antiquated that their meaning is obscure, except to a small number of medievalists. Nonetheless, it was a broadly written and ambitious document.

It is often said that it merely protected the barons in their particular liberties, not the broader populace in their general liberty, but this is mistaken. Consider these articles:

* Article 7: "A widow, after the death of her husband, is immediately ... to have her marriage portion and her inheritance"--thus protecting women's property.

* Article 10: "No one is to be distrained to do more service for a knight's fee or for any other free tenement than is due from it"--thereby preventing a sort of taking.

* Article 20: "A free man is not to be amerced for a small offence except in proportion to the nature of the offence,... and a villein [an unfree man] is to be amerced in the same manner, saving to him his growing crops"--thus protecting even serfs.

* Article 40: "To no one will we sell, to no one will we deny or delay right or justice."

All of these were general provisions, which secured basic freedoms for wide segments of English society.

One of the broadest articles was number 39, and this talk will later devote much attention to it. Article 39 declared that "no free man shall be... imprisoned or disseised [that is, dispossessed]... except by the lawful judgment of his peers or by the law of the land." This laid down principles that were not yet trial by jury and the due process of law but that were the foundation of these rights.

Before turning to due process, let's conclude our examination of Magna Carta by considering its afterlife. Magna Carta was not the last word on its assurances, because in the Middle Ages, what we would consider constitutional documents were merely the personal assurances of a monarch. Successive kings therefore reissued Magna Carta to show their commitment to it. Already on John' death in 1216, his nine-year-old son, Henry III, acting with his advisers, sought to avoid further unrest by reissuing Magna Carta (with some provisions omitted), and it was reissued again in 1217 and 1225 in exchange for grants of taxes to the king. The 1225 version was copied in later reissuances, the last of which occurred in 1300.

Much later, in the 17th century, Parliament reasserted portions of Magna Carta. Parliament recited Article 39 in 1628 in the Petition of Right and again in 1641 in the statute abolishing the Star Chamber. The latter (together with statute of the same year abolishing the High Commission) was the mid-17th-century equivalent of an abolition of administrative agencies.

Thereafter, however, Magna Carta becomes a matter of history. So let's stop talking generally about Magna Carta and focus instead on Article 39 and where it led.

The Development of the Due Process

My argument is that Clause 39 and later concepts of due process developed precisely in order to defeat prerogative or administrative adjudication--that is, to defeat the binding adjudications that rulers tried to impose outside the courts of law. Thus, rather than merely setting a standard for the courts, the due process of law also, perhaps even more centrally, bars binding administrative adjudications.

The origins of due process can be found in Magna Carta's Article 39. It did not use the phrase "due process of law." Instead, remember, it stated that "no free man shall be... imprisoned or disseised... except by the lawful judgment of his peers or by the law of the land."

The meaning of this clause is much disputed. For example, what was "the lawful judgment" of one's "peers"? Some say it refers to juries; others point out that the English adopted juries only slowly over the next century and that it therefore must have referred to only barons. In fact, trial by one's peers was a widely admired ideal, not only for barons, but for all free men, and tellingly, Article 39 begins: "no free man." Thus, although Article 39 did not narrowly refer to juries, it apparently referred to the underlying principle.

Why did Article 39 emphasize these two principles: judgment by peers and by the law of the land? Article 39 was designed to bar binding adjudication outside the courts--in other words, it took aim at the prerogative or administrative adjudication by which rulers evaded the regular processes of the courts.

How can one know this? There is not space here to examine all the evidence, but two examples should suffice. In letters patent (a grant) of May 10, 1215--a month before Magna Carta--John assured his opponents that "he would not arrest or disseise them or their men nor would go against them by force of arms except by the law of the land and by judgement of their peers in his court."

Other evidence comes from the "Unknown Charter"--so-called because it was unknown until the late 19th century. The Unknown Charter records talking points in the negotiations for Magna Carta, and the very first clause begins: "King John grants that he is not to arrest a man without judgment." This became Article 39's guarantee that "no free man shall be... imprisoned or disseised... except by the lawful judgment of his peers or by the law of the land."

Article 39 thus took aim at adjudications outside the courts--what civilian commentators would call "extralegal" adjudication and what we would call administrative adjudication. Of course, much of John's administrative adjudication was more vigorous, even violent, than that which prevails today, but it was similar in being a means of doing justice outside the courts of law. As put by J. C. Holt (the most distinguished historian of Magna Carta), Article 39 was "aimed" primarily against "arbitrary disseisin at the will of the king," against "summary process," and against "arrest and imprisonment on an administrative order." (2) Or as put by another historian, W. L. Warren, Article 39 targeted "executive action" against offenders. (3)

This focus on administrative adjudication is important. Although Magna Carta is merely history, administrative adjudication is now even more common than in 1215, and this suggests that, whether one calls it prerogative or administrative adjudication, it is a recurring danger. Governments are never content to govern through the law and the decisions of the courts, but repeatedly seek other, extralegal modes of power, and just because we have replaced a monarchy with a republic does not mean the problem has gone away. The central danger that Magna Carta addressed thus remains very much alive.

How did Article 39 became the due process of law? This happened through a series of 14th-century statutes, and these due process statutes confirm that due process was an obstacle to administrative adjudication.

The statutes were prompted by the prerogative or administrative misconduct of Edward III. Edward was not satisfied to hold subjects to account in the courts; he also summarily called them before his council for questioning and punishment. In 1354, Parliament therefore enacted the first due process statute, which echoed Magna Carta's Clause 39: "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"--meaning the process of the courts of law.

Of course, Edward, being a king, failed to live up to this statute; within a decade, he once again hauled men into his council instead of working through the courts. So in 1368, Parliament passed another due process enactment. The preamble recited that the attempts to hold subjects accountable "before the king's council" were "against the law." The statute then provided that "no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the ancient law of the land." As summarized on the margin of the Parliament roll: "None shall be put to answer without due process of law."

All of this is interesting, for it makes clear that any attempt to bind subjects in the king's prerogative or administrative council was unlawful. Even merely an attempt to summon them to answer questions was unlawful. Due process barred all binding administrative adjudication.

One of the most curious aspects of the 1368 Due Process Statute is its final clause about the judges. It instructs them: "if anything henceforth be done to the contrary, it shall be void in law, and held for error."

This has long puzzled commentators. Some have suggested that Parliament was inventing judicial review. This, however, is nonsense. The judges already were willing to hold unlawful royal acts unlawful and void--as when they encountered royal grants of previously conveyed land. The judges therefore did not need statutory authorization to hold royal acts void.

Why, then, the statute's final clause? It would appear that the judges had previously deferred to the king's prerogative adjudications. Therefore, to prevent any such deference, Parliament added that "if anything henceforth be done to the contrary, it shall be void in law, and held for error."

In a 1368 case, the judges made clear that they understood what was required of them. After a commission established by Edward seized and imprisoned a man and took his goods, the judges held the commission void, saying it was "against the law" because it authorized the commissioners "to take a man and his goods without indictment, suit of a party, or due process." Adjudication outside the courts was contrary to due process, and the judges held it unlawful without any deference. How times have changed!

This role of due process in precluding administrative adjudication remained familiar because of the Petition of Right. Charles I came to the throne in 1625, and he soon was demanding money not only as authorized by law but also on the basis of prerogative or administrative edicts. And to enforce his administrative demands, he penalized noncompliant men in administrative proceedings--that is, outside courts.

Parliament responded in 1628 with the Petition of Right, which echoed Magna Carta and the 1368 Due Process Statute. The petition recited Magna Carta to the effect that "no freeman may be taken or imprisoned... but by the lawful judgment of his peers or by the law of the land." The Petition of Rights also quoted the 1368 statute that "no man" should be "taken, nor imprisoned... without being brought to answer by due process of law."

Let's now move up to the 18th century. When the Fifth Amendment to the US Constitution guaranteed the due process of law, it continued in the tradition of Magna Carta, the due process statutes, and the Petition of Right. Although it set a standard for the courts, it more basically barred any binding adjudication outside the courts.

Consider the words of the Fifth Amendment: "No person shall ... be deprived of life, liberty, or property, without due process of law." If the amendment merely limited what the courts could do, it would have stated in the active voice: "No court shall deprive any person of life, liberty, or property, without due process of law." Instead, it was written in the passive voice, and it thereby limited all parts of government.

This is true of much of the federal Bill of Rights. Most of the Bill of Rights guarantees procedural rights, and most of these rights--including the Fifth Amendment--traditionally were barriers to adjudication outside the courts. The Bill of Rights had to limit not merely the courts, but all parts of government. Most of its amendments therefore had to be stated in the passive voice.

Not only the text but also the location of the Fifth Amendment is revealing. To bar administrative adjudication--that is, binding adjudication outside the courts--the Fifth Amendment and the other procedural rights could not have simply modified Article III of the Constitution, because then they would have limited only the courts. These guarantees also had to limit the executive in Article II of the Constitution. The drafters of the Bill of Rights therefore changed how they wrote it.

Originally, they drafted amendments to particular articles of the Constitution. Ultimately, however, they added amendments at the end of the whole Constitution, and this mattered because it allowed the amendments to limit all parts of the government. For example, the Fifth Amendment at the end of the Constitution limited not only the courts but also Congress and the executive.

In these ways, both the text and the location of the procedural rights make clear that they limit all parts of government. And in limiting not only courts but also Congress and the executive, they bar prerogative or administrative power.

The implication for due process was recognized by the earliest surviving academic commentary on the Bill of Rights. St. George Tucker--a Virginia judge--began teaching constitutional law at William and Mary in 1791, and some of his notes, apparently added to his lectures in early 1796, are revealing. After quoting the Fifth Amendment's Due Process Clause, he concluded: "Due process of law must then be had before a judicial court, or a judicial magistrate."

The Fifth Amendment thus bars the government from holding Americans to account outside courts and their processes. This was the breadth of the principle from its very beginnings, this was how the Fifth Amendment was drafted, and this was how the amendment was understood.

The development of ideas of due process thus runs directly from Magna Carta's Article 39 in 1215, to the 1368 Due Process Statute, to the 1628 Petition of Right, to the Fifth Amendment in 1791. Throughout this history, due process was a guarantee not only against abuses by courts but also against binding adjudication outside the courts. Whether prerogative or administrative, binding adjudication outside the courts violated guarantees of the due process of law.

So, how did this change? We now have administrative adjudication on a vast scale, and the Supreme Court tells us that this does not violate due process. How did the concept of due process come to permit what it once centrally forbade?

The Destruction of Due Process

The creation of ideas of due process was one of the great achievements of the past. The destruction of due process is an accomplishment of our own times.

The destruction has occurred primarily through administrative adjudication. Administrative adjudication evades courts, judges, juries, the privilege against self-incrimination, and most other procedural rights, and all of this can be summed up as the evasion of due process.

Just to be clear, when I criticize administrative adjudication, I mean binding adjudication outside the courts--the issuance, in particular cases, of administrative edicts that bind or constrain persons subject to the law of the United States. My argument therefore does not include the adjudication of benefits, unless they have become legal rights. Nor does it ordinarily include any adjudication on the status of illegal or enemy aliens.

Instead, the problem is binding or constraining adjudication that evades the due process of law and most other procedural rights. On account of this evasion, administrative adjudication is the most serious assault on the Bill of Rights in the nation's history.

The practical result of this administrative evasion of due process is ambidextrous enforcement. When due process was still understood, the government could constrain Americans in particular cases only through the courts and their judges and juries. Now the government can instead choose administrative adjudication. It thus has the choice to proceed through the courts and their due process or through administrative adjudication and its faux process.

The SEC offers a timely illustration. It can refer cases to the Justice Department to prosecute defendants criminally, or it can proceed against them in-house through its administrative law judges (ALJs). When the SEC does not expect to win in court (with juries and regular due process), it can simply proceed through its ALJs (without juries and regular due process). Last summer, indeed, the SEC's enforcement director candidly explained that the SEC could pursue cases administratively when it did not expect to persuade a jury. (4)

The problem, however, is much broader, for it is not merely that an agency can chose between enforcement in court and out of court. The problem includes all administrative evasion of due process, and it thus most basically occurs whenever Congress authorizes agencies to work through administrative adjudication. It therefore makes no difference whether or not the decision to proceed administratively rests in the agency. Regardless, whenever an agency engages in administrative adjudication, the government has chosen to evade the courts, judges, juries, and the due process of law.

The problem, in other words, is not agency discretion, but government evasion. It is not simply that a particular agency (such as the SEC) can choose to enforce its regulations through either the courts or its own proceedings; instead, the problem more generally is that Congress can chose to establish paths of enforcement outside the courts and that the government as a whole can thereby evade due process. And in evading due process, including most of the procedural rights, the government evades much of the Bill of Rights.

But it gets worse, for in addition to allowing the evasion of due process, the Supreme Court has eviscerated the very concept of due process. To accommodate administrative adjudication, the due process of law has been reconfigured as "the process that is due," which surely is one of the most misleading phrases in American law. Whereas due process once was the due process of law (meaning the process of the courts of law), it now legitimizes the administrative evasion and its ambidextrous vision. (5) Now, due process means either the process of the courts of law (when the government chooses to proceed in the courts) or merely administrative process (when the government chooses to authorize administrative adjudication in agencies).

Due process thus is now bifurcated into the government's choice between judicial due process and administrative faux process. Whereas due process of law once was a guarantee against government, it now is merely an option for the government--an option it can choose or not, as it pleases.

Counterarguments

Before concluding, I want to consider some counterarguments. These counterarguments turn out to be less than persuasive, but they need to be taken seriously.

One counterargument is that administrative adjudication is actually very fair. Administrative adjudication often comes with ALJs, most of whom are very conscientious and who are protected in their salary and tenure. It also often comes with hearings, evidence, and often a formal record. In theory, therefore, it is not really so bad. In theory.

Consider the personnel--the "judges." Many administrative adjudicators are not ALJs and thus lack any independence. Even ALJs are not really independent. They can be demoted or have their salary docked if they reject administrative regulations as unconstitutional. In a 1992 survey of ALJs, 15 percent complained of threats to their independence, and 8 percent said this was a frequent problem. (6) Just recently, Lillian McEwen--a former ALJ at the SEC--protested about intimidation by the commissioners. Even after ALJs adjudicate, their decisions often are subject to review (or being finalized) by heads of agencies, who did not hear the cases, who are political appointees, and who usually lack even the pretense of independence.

Now consider the process. Agencies rely on subpoenas for discovery without usually allowing the same discovery for defendants. There are no juries, even when agency proceedings are criminal in nature. And the burden of proof and persuasion is often reversed, so that defendants have to prove their innocence--a common problem in many licensing proceedings and also in other administrative proceedings when an adjudicator takes "official notice" of facts. Rather than the due process of law, all of this is a pale imitation of it.

Another counterargument is that one always can get due process later, in judicial review of administrative adjudications. This delayed due process argument, however, runs into difficulties.

For one thing, due process, juries, and other procedural rights are rights in the first instance, not merely on review. Some of the earliest state constitutional cases--the Ten Pound Cases in New Hampshire in 1786 and 1787--repeatedly held that judicial review (even with a de novo hearing before a jury in court) cannot cure an initial administrative violation of jury rights. From this point of view, the administrative adjudication already violates procedural rights, regardless of any review.

The delayed due process argument is also unpersuasive because of the doctrine of exhaustion of administrative remedies. For practical purposes, this means the exhaustion of administrative defendants before they get to court. An agency in its administrative proceedings will often exhaust the defendant's finances, and he then cannot afford to appeal to the courts.

The delayed due process theory is ultimately rather comic, because after administrative proceedings, you cannot get due process in the courts. When you appeal an administrative decision to the courts, the judges do not call a jury but instead simply defer to the government's administrative record--in other words, to the government's version of the facts. The judges also defer to the government's interpretation of ambiguous statues--that is, to its legal position (this being the Chevron doctrine).

Even when lower court judges reject an agency interpretation, the Supreme Court allows the agency to disregard the court decision (this being the Brand X doctrine). And even when the judges hold an agency action unlawful, they often hesitate to declare it void, instead remanding it to the agency. All of this is deference to the government, and when the government is a party, it is systematic judicial bias in favor of one party and against other parties.

Thus, even if judicial review were a cure for the administrative denial of due process, judicial review of administrative adjudication is very different from other judicial review. It offers much less than due process, and where the government is a party, it is marred by systematic bias. Rather than delayed due process, this is a gross violation of due process. The courts, in other words, are no cure for the administrative evasion of due process. Instead, too often, after the initial administrative evasion of due process, the courts engage in their own denial of due process.

Another counterargument is that due process has been expanded, and it has in some ways. But much of its core has been destroyed.

For example, on account of Goldberg v. Kelly, there now is some minimal due process right against the denial of some benefits, and in these cases, it can be mildly advantageous to have the process that is due. Goldberg, however, offers only a smidgeon of process for denials of some benefits, and it is part of a broader jurisprudence that accepts a profound denial of due process for government constraints.

The sort of doctrine evident in Goldberg therefore strains at a gnat and swallows the proverbial camel. It secures negligible administrative process in some benefit cases while accepting serious denials of the due process in constraint cases. The overall effect is not so much to expand due process at the edges as to legitimize administrative violations of due process at the core.

Yet another counterargument is that we now have substantive due process and the use of due process to "incorporate" the Bill of Rights against the states. The use of due process, however, to protect substantive rights cannot justify the denial of the core procedural due process.

The reality for the core of due process--the procedural right--is grim. Due process has shifted from something guaranteed to something merely optional. It once was a guarantee against the government--that the government could not bind anyone in a particular case without proceeding against them in a court, with its due process. Now due process is merely an option for the government. If the government proceeds against you in a court, you get the due process of law, but if it chooses to proceed against you in an agency, you merely get administrative process--"the process that is due."

Conclusion

In the nearly 1,000-year common law struggle for government under and through the law, extralegal power (whether prerogative or administrative) has repeatedly evaded the paths of law, thereby provoking constitutional responses. The constitutional barriers have included Magna Carta, the 14th-century due process statutes, 17th-century English constitutional developments, and 18th-century American constitutions.

Extralegal power, however, has repeatedly returned, and in the resulting ebb and flow of law, most procedural rights now are at an ebb tide. The current administrative evasions escape courts, judges, juries, and--in general terms--the due process of law. They thus make a mockery of the Bill of Rights.

In these circumstances, the US Constitution has never been less relevant, and Magna Carta has never been more relevant. Our right of due process and other procedural rights increasingly look as if they are as lost in the mists of time as the provisions of Magna Carta. And Magna Carta is therefore especially relevant, for it is a reminder that extralegal power, including the judicial power exercised outside the courts, is an enduring danger--a danger that is nearly 1,000 years old. Constitutional documents repeatedly have interred this threat, but it always comes back from the grave.

In 1590, when protesting against the High Commission, the prominent lawyer James Morice protested: "Where is now... the great Charter of England?... Where is now the [due process] statute?" We might ask the same questions. Where is now the Constitution? Where is now the Fifth Amendment's guarantee of due process? Times have changed, but the danger endures.

And this brings us back to Walter Berns. He recognized the enduring problems of human nature, and he therefore understood the recurring character of the threats to law and liberty. For this reason (and many, many others), he will be sorely missed.

Never in this nation's history has law been more at risk. Because of administrative power, most of the guarantees in the Bill of Rights, including due process, have become merely optional. No longer guarantees of rights, they have become simply options for power. More than ever, therefore, we need to follow Walter's example: we need to keep our eye on the Constitution and the enduring dangers to it.

Notes

(1.) Tom Ginsburg, "Stop Revering Magna Carta," New York Times, June 14, 2015, http://www.nytimes.com/2015/06/15/opinion/stop-reveringmagna-carta.html?_r=0.

(2.) See J. C. Holt, Magna Carta, 3rd Ed. (Cambridge: Cambridge University Press, 2015).

(3.) See W. L. Warren, King John (Oakland: University of California Press, 1978).

(4.) Since then, under political pressure, the SEC has partly backed away from this ambidextrous policy, but only partly, and legally it remains free to pursue it.

(5.) Although courts of equity and admiralty are often contrasted with courts of law, these specialized courts increasingly were understood to operate within the common law system, not merely as alternatives to it, and in this sense they are included here among the courts of law--meaning the courts that applied the law.

(6.) For the 1992 survey, see Charles H. Koch Jr., "Administrative Presiding Officials Today," Administrative Law Review 46 (1994): 271, 278.

About Philip Hamburger

Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. Before his time at Columbia, he was the John P. Wilson Professor at the University of Chicago Law School, where he was the director of the Bigelow and the legal history programs. He has been the Oswald Symister Colclough Research Professor at George Washington University Law School and a professor at the University of Connecticut Law School. Additionally, Hamburger has held visiting professorships at the University of Virginia Law School and at Northwestern Law School, where he was the Jack N. Pritzker Distinguished Visiting Professor of Law. He has also been an associate at Schnader Harrison Segal & Lewis LLP in Philadelphia. A scholar of constitutional law and its history, Hamburger's publications include Is Administrative Law Unlawful? (University of Chicago Press, 2014), Law and Judicial Duty (Harvard University Press, 2008), and Separation of Church and State (Harvard University Press, 2002), in addition to numerous articles.
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