Magna Carta Comes To America


What, then, is the place of Magna Carta in American constitutionalism? Chapter 39 particularly resonates today with its declaration that no one shall be proceeded against or prosecuted except by “the law of the land,” a clear articulation of the principle of the rule of law—the belief that all who govern are subject to the law. Moreover, in Magna Carta’s “law of the land” is found the early origins of the concept of “due process of law.” Thus the Fifth and Fourteenth Amendments to the U.S. Constitution refer to the “law of the land” when they declare that no person shall be deprived of “life, liberty, or property, without due process of law.” No concept in American constitutional law has seen such remarkable evolution and adaptation as has that of due process of law. Not only has it been held to require fairness in criminal trials, but also to place substantive limits on the powers of government, for example, in modern Supreme Court cases recognizing a right of personal privacy or autonomy.

Magna Carta also placed America on the road to having a written constitution. England’s “liberty” documents, beginning with Magna Carta, set a precedent for the writing of colonial charters that, in turn, became critical steps for the modern-day tradition of using written constitutions as the basis for government. Magna Carta was also instrumental in spurring the Anglo-American tradition of organic development and growth of constitutional principles. In a profound sense, American constitutionalism has taken on the evolving nature of common law itself, as the history of the Constitution’s due process clauses makes clear.

Magna Carta stirred the notion of a constitution as superior even to legislative acts. A statute of Edward III in 1368 declared that, if any statute be contrary to Magna Carta, “it shall be holden for none.” In that language, the idea emerged of Magna Carta as a superstatute—the norm against which other laws were to be measured. In time, the understanding of unconstitutionality was refined and distilled to produce the language of the U.S. Constitution’s supremacy clause: the Constitution and all laws “made in pursuance thereof” shall be the “supreme Law of the Land.”

American history provides important “constitutional moments.” All of them owe a debt to Magna Carta. That is why visitors to the National Archives should pause before Magna Carta, drink in its meaning, and only then proceed to view America’s founding documents.