Eight hundred years ago today, a group of English nobles forced King John to sign a charter that confirmed their liberties and privileges. This document came to be called Magna Carta, the “Great Charter.” It was “great” originally because of its oversize parchment, later as the founding document of Anglo-American constitutionalism. It was the first state paper to express the idea that government is limited and individuals have rights that the government cannot violate.
But in important ways, American constitutionalism was based upon a rejection of Magna Carta’s idea of the enumeration of rights. The United States was founded on the idea that it was the powers of government that needed to be specified, while the people’s rights were assumed and did not need enumeration. After a period in the mid 20th century when American courts embraced the Magna Carta approach, we have again rejected it. If the Supreme Court strikes down state bans on homosexual marriage this month, it will be despite, not because of, Magna Carta.
Magna Carta was a medieval document concerned with 13th-century feudal obligations and privileges that almost nobody understands today, even in translation. (Some of us still read the Declaration of Independence on July 4. Almost nobody reads Magna Carta on June 15.) It is full of archaic institutions like our own Constitution’s “letters of marque and reprisal.” Article 35, for example, declares that “there shall be standard measures of wine, ale, and corn (the London quarter) throughout the kingdom. There shall also be a standard width of dyed cloth, russet, and haberject, namely two ells within the selvidges.”
In the 17th century, Magna Carta became something more, the basis for the rights of Englishmen against the attempt by the Tudor and Stuart kings to establish an absolute monarchy. Sir Edward Coke was most responsible for cooking up this “myth of Magna Carta.” In this view, Magna Carta had established all of the “rights of Englishmen” — consent to taxation, trial by jury, habeas corpus — which the Englishmen who came to North America brought with them. (Coke probably helped draft the charter of the Virginia colony.) Every American colonial charter contained Magna Carta–derived language.
Its central provision became chapter 39 of the charter, that “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, except by the lawful judgment of his equals or by the law of the land.” This provision came to be translated as “due process of law.”
The American Founders shared this veneration of Magna Carta. A good portion of the Declaration of Independence sounds like it, enumerating the rights of Englishmen that the king had violated. But far more important than these was the expression of the idea of the social contract, completely foreign to Magna Carta, that individuals had rights that existed before government was created, and that governments were instituted to protect those rights. Magna Carta contained no sense of self-evident truths about human rights — no idea that its provisions applied to all men, in all times and in all circumstances.
Thus, when the Founders wrote the Constitution, Magna Carta did not come up in their discussion. They did not include a “bill of rights,” or list of rights that government could not violate. This was one of the most formidable complaints of the Anti-Federalists, who did not understand the nature of the new government. As Alexander Hamilton explained, a bill of rights was not only unnecessary, but positively dangerous, in the new, limited government that the Constitution created. Bills of rights, Hamilton argued, originated in agreements between kings and subjects, “reservations of rights not surrendered to the prince. Such was MAGNA CHARTA,” he noted, in emphatic capital letters. It “would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” Under the new federal government, rights were assumed. It was the powers of government that needed to be enumerated.
To get the Constitution ratified, the Federalists had to promise that they would offer a set of amendments, which became our Bill of Rights. The Ninth Amendment answered Hamilton’s argument, saying that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Under the new federal government, rights were assumed. It was the powers of government that needed to be enumerated.
But, just as Hamilton predicted, enumerating a right was no surefire way to protect it. He warned: “What signifies a declaration, that ‘the liberty of the press shall be inviolably preserved’? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion?” The Fifth Congress passed the notorious Sedition Act, punishing libels against the government, on the theory that “freedom of the press” meant only no prior restraint.
Before the Civil War, the Bill of Rights limited only the federal government, and was of little importance. Other parts of the Constitution, especially the contract clause (which Chief Justice John Marshall called “a bill of rights for all the states”), had more impact on the protection of individual rights. The Fourteenth Amendment changed that. It held that the states could not deprive anyone of “life, liberty or property without due process of law” — language copied from the Bill of Rights and reiterations of Magna Carta. The other provisions of section 1 of the amendment, the “privileges and immunities” and “equal protection” clauses, were really just variations on the due-process clause. As Thomas McIntyre Cooley, the most prominent law writer of the late 19th century, put it, due process included equal protection — and more. “You will never hear the end of that [due process] phrase as long as this is a free country,” said Supreme Court justice John Marshall Harlan.
The principal question about the due-process clause, one that divides scholars to this day, was whether it merely guaranteed certain procedures, like trial by jury, or whether it protected substantive rights. The latter view — that some rights were so fundamental that individuals could not be deprived of them regardless of what procedure was used — came to be called “substantive due process.”
Originally intended to protect the rights of the freed slaves and Unionist whites in the former Confederate states, the Fourteenth Amendment was most often — but not very often — used to protect economic freedom. It prevented states from setting railroad rates so low as to amount to a “taking” of private property for public use without just compensation. In its most notorious application, in the Lochner case of 1905, the Supreme Court used it to strike down New York’s law limiting the number of hours that bakers could work.
Progressives came to deride this use of the Fourteenth Amendment and substantive due process. Some, such as Louis D. Brandeis, even called for the repeal of the amendment. Progressives repudiated the Founders’ rights-default position, as described in Federalist 84. For them, government’s job was not to protect pre-existing individual rights, but to provide individuals with rights — what would come to be called “entitlements.”
But progressives came to see that the Fourteenth Amendment could be used to protect non-economic rights, like those of free speech and religious dissent. The trick was to use due process for the right rights. Shortly after progressives gained control of the Supreme Court in 1937, the Court indicated that some non-economic rights, and the rights of some groups (“discrete and insular minorities”), were entitled to special protection. Most American constitutional law since then has been an elaboration of this “double standard,” announced in a footnote to an otherwise obscure case — U.S. v. Carolene Products, which upheld Congress’s prohibition on the interstate shipment of “filled milk.”
Still, progressives remained wary of due process as a constitutional tool. For years they argued over whether and how much of the Bill of Rights applied to the states. In Brown v. Board of Education (1954), they twisted themselves into pretzels to avoid basing their decision on the due-process clause. Due-process phobia reached its apex in Griswold v. Connecticut (1965), when the Court struck down that state’s ban on the prescription of contraceptives. Justice William O. Douglas claimed that there was a “right to privacy,” not exactly spelled out in the Bill of Rights, but implied by several of its provisions. “Specific guarantees [in the Bill of Rights] have penumbras, formed by emanations of these guarantees that help give them substance and life.” In 1973 this right to privacy became the basis for the right to abortion in Roe v. Wade.
Eventually the “right to privacy” basis of Roe broke down, along with other parts of the decision. When the Court reaffirmed the “central holding” of Roe, that there is a constitutional right to abortion, it did so on the basis of the due-process clause of the Fourteenth Amendment. This was later extended to homosexual acts. It is likely to soon include homosexual marriage (though equal protection may again be the stand-in for due process). For better or worse (if you will), when it comes to non-economic rights, and the rights of minorities, at least, liberty is presumed and rights are unenumerated.
— Paul Moreno holds the William and Berniece Grewcock Chair in Constitutional History at Hillsdale College and is the director of academic programs at the college’s Kirby Center.