Search results for "Magna Carta"

Recent Case Discussing Rights Under Magna Carta

It’s an Irish case, Lough Swilly Shellfish Growers Co-operative Society Ltd & Anor v. Bradley & Anor, and it deals with the claim that, “[u]nder English law, as a result of Magna Carta, [private] fisheries could not be created in tidal waters unless they existed prior to the death of Henry II.” But that provision of Magna Carta, the court says, is yesterday’s news, having been repealed in relevant part by subsequent legislation (if I understand the matter correctly).

Thanks to Prof. Seth Tillman for the pointer.

UPDATE: Prof. Tillman adds,

Lough Swilly is a fun case. The debate is not on the English Magna Carta of 1215 between King John and English barons, but on the Irish Magna Carta of 1216 between King Henry (don’t ask me which one, John’s son, I think) and the Irish barons. The case is on a serious and misunderstood point of constitutional law — the relation between statutory authority and ministerial powers (what we would call inherent Executive Branch powers). Some of the same issues were mooted in an older Irish case — Moore v. Attorney-General [1934] I.R. 44 (Sup. Ct. Eire), which was adjudicated under the Free State Constitution of 1922, not the current constitution enacted in 1937.

Note that the Irish Magna Carta seems to have been largely the same as the English Magna Carta, but with some Ireland-specific changes. [...]

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Response to Prof. Rosenkranz: ArmS & the Man – or Arms & the People

Nick takes issue with my suggestion that the Second Amendment on its face bars laws restricting people to one gun, such as that currently proposed by Gov. Quinn in Illinois.

My (first) argument is not an originalist or purposivist one, but rather a purely textual one. The primary meaning of “arms” is plural. Nick argues the plural is used to go with “the right of the people.” The real “reason,” I think, the plural term is used is probably because that is how it was written in the English Bill of Rights (and the Magna Carta). The question is what are the consequences of those possibly unconscious decisions and associations for a textual reading of the Constitution.

Certainly the plural arms goes with the plural “people.” But both are independent drafting choices. For example, the right of the people could have been “to be armed,” which would leave out the plural. Or it need not have been written in terms of “the People.” Nick compares it the Fourth Amendment. I like that: is the “people’s” right to be secure in their “houses, papers, and effects” even arguably singular, or be restricted to one house, one paper, one effect? Could papers be limited to one piece of paper? It is not “people” that makes “papers” plural, it is the way people commonly use paper.

Turning to purpose, the Framers used a plural word; they certainly did not intend to rule out “one gun” rules, because as far as I know, they had never encountered such restrictions, and were more interested in gun minimimums than maximums. None the less, the plural has consequences. Nor are the consequences absurd (this still permits two-gun limits) though they may be undesirable from certain policy perspectives. Nor is the reading contradicted by substantial originalist [...]

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Guest Post from Prof. Larry Tribe on the Constitutionality of the Debt Ceiling

Prof. Larry Tribe (Harvard), one of the nation’s leading liberal constitutional law scholars, passed along this item (also posted at Dorf on Law), and I thought our readers would find it interesting:

I. The Constitutionality of the Debt Ceiling

Professor Buchanan argues in a recent post that the Constitution “[f]ortunately … does require that the debt-limit law be declared invalid,” writing:

Everyone agrees that, without the debt-limit law, current law would allow the government to borrow the money necessary to cover its obligations. If that were not so, then we would not be in danger of exceeding the debt limit. That is, if the spending laws had not been written to include the authority to increase borrowing, then those laws would currently not be enforceable even in the absence of an overall debt limit. The very premise of the debt-limit standoff, therefore, is that the otherwise-valid spending laws would lead to an increase in debt above $14.3 trillion. The debt-limit statute purports to prevent the government from paying those other obligations, which violates Section 4.

In an op-ed published in the New York Times, I argued that the debt limit law is perfectly constitutional. Professor Buchanan’s comment does not prompt me to change that conclusion but does encourage me to elaborate on it:

To begin, Professor Buchanan asserts that the “spending laws [were] written to include the authority to increase borrowing.” I am at a loss to see why Professor Buchanan assumes this to be so. Some spending laws might conceivably be written in a way that includes such authority — that is, written expressly or impliedly to authorize whatever borrowing might be needed to fund the obligations they create, notwithstanding any other limit set by law. But I haven’t personally seen any spending laws written in a way

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Big Week in Freedom

Tim Sandefur (PLF Liberty Blog) reminds me that tomorrow is Juneteenth, a holiday that marks the end of slavery in the United States. As I noted earlier this week, June 15 is the anniversary of Magna Carta. June 14 is of course Flag Day, which celebrates the adoption of the U.S. flag. And on a much more personal note, June 13 is the anniversary of my family’s departure from the Soviet Union (in 1975) — not that relevant to your freedom, but very relevant to mine. [...]

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No Right to Assault Police Officer Entering Home Even if Entrance is Unlawful, Indiana Supreme Court Holds

The decision is Barnes v. State, and the Indiana Supreme Court divided 3-2.

In this case, the officer had come to the home in response to a domestic violence call. He found the defendant, Barnes, outside. The officer and the defendant exchanged heated words, and the defendant started yelling at the officer. The officer threatened to arrest the defendant if he didn’t calm down, and the defendant threatened to have the officer arrested if he arrested him. At this point the defendant’s wife came outside, threw a duffel bag in the defendant’s direction, and told him to take the rest of his stuff. She then went back inside the home. The defendant then reentered the home following his wife, but once inside he blocked the officer (and another officer) from entering. The officers asked if they could enter the home, and the defendant’s wife pleaded with the defendant to let them enter. The defendant refused. The police then entered anyway, and the defendant “shoved [an officer] against the wall.” The officers then tazed the defendant and arrested him.

The defendant was charged with misdemeanor battery against a police officer, among other things. At trial, he wanted to argue to the jury that it was lawful to shove the officer because he had a citizen’s right to reasonably resist unlawful entry into his home. He sought the following jury instruction:

When an arrest is attempted by means of a forceful and unlawful entry into a citizen‘s home, such entry represents the use of excessive force, and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry.

The trial judge refused to let the defendant make that argument to the jury. The jury convicted, and the defendant argued that it was legal error [...]

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A small correction for Sandefur

Timothy Sandefur  produces important research on economic liberty. I’m pleased that the Independence Institute, where I work, recently hosted an event for him to promote his book. I’m also happy that he has become part of the team of Cato Institute writers, which I have been part of since 1988. As a contributing editor of Liberty, I have followed his writing since he was a law student. And of course I commend Eugene for inviting him to guest-blog for VC. However, one item in his blogging appears to me to be erroneous:

When talking about “substantive due process,” as I’ve been doing, one must address a number of myths about that theory that, sadly, are so common that many law students are never even taught what the theory even means.


Here is a good example: “the Supreme Court has never in its entire history tried to derive [substantive due process] from the text of the Constitution.” Nelson Lund & David B. Kopel, Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III, 25 J.L. & Pol’y 1, 3 (2009). Now, whether one accepts or rejects the idea of “substantive due process,” this claim is just false. The Supreme Court had repeatedly explained how substantive protections arise from the Constitution’s text.

The quote is not precisely accurate, and here, the lack of precision leads to a serious error. In the article that Sandefur cites, Nelson Lund and I were discussing and criticizing Roe v. Wade. After a quote from Roe about “the Fourteenth Amendment’s concept of personal liberty,” we then wrote: “This was presumably a reference to the doctrine of substantive due process, which the Supreme Court has never in its entire history tried to derive from the text of the Constitution.”

Our statement as [...]

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Two or Three Myths About Substantive Due Process

When talking about “substantive due process,” as I’ve been doing, one must address a number of myths about that theory that, sadly, are so common that many law students are never even taught what the theory even means.


Here is a good example: “the Supreme Court has never in its entire history tried to derive [substantive due process] from the text of the Constitution.” Nelson Lund & David B. Kopel, Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III, 25 J.L. & Pol’y 1, 3 (2009). Now, whether one accepts or rejects the idea of “substantive due process,” this claim is just false. The Supreme Court had repeatedly explained how substantive protections arise from the Constitution’s text. [...]

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Constitutional puzzle

What are the earliest five constitutions of independent countries? [UPDATE: Why limit ourselves to five? Let’s just go no further than 1799. Also, I forgot the most important part: they must be written. Every country has a constitution, but most old ones are unwritten!]

A bit of definitions and clarifications to start us off:

  1. The countries may or may not still exist.
  2. The constitutions may or may not still be in force.
  3. The constitution must self-consciously be a constitution; i.e., the Magna Carta doesn’t count. [UPDATE: Perhaps this point might be said to imply the “written” point that I’ve also clarified above. Note that most early codes are just law codes, not “constitutions” in the modern sense. To qualify here, a constitution should, at a minimum, purport to establish the state, define its officers, etc.]
  4. The country involved must consider itself independent; if there’s debate over whether the country really exists (like if many countries don’t recognize it), I resolve the doubt in favor of independence.
  5. There might be some debate over the status of the earliest U.S. state constitutions, e.g. the South Carolina constitution of early 1776. Therefore, exclude the original 13 states from the answers.
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NRA brief in McDonald v. Chicago

Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court to over-rule Slaughterhouse, Cruikhank, and Presser.

In my view, it’s a superb brief. It’s worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.

In the brief’s short discussion of Due Process, attorney Alan Gura aptly writes: “A ‘law’ depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.'” (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644-45 (2009).) This is an important point; “substantive due process” may be ill-named, but it is founded on legitimate, originalist doctrine.

Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of [...]

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Remembering Lysander Spooner:

In this date in 1887, Lysander Spooner, the great Nineteenth Century lawyer, abolitionist legal theorist passed away in Boston. More information about Spooner, as well as most of his publications and correspondence, can be found at Here is a portion of obituaries that appeared in the Boston Daily Globe and Liberty:

Lysander Spooner: One of the Old Guard of Abolition Heroes, Dies in His Eightieth Year After a Fortnight’s Illness, Boston Daily Globe, May 18, 1887

John Boyle O’Reilly Predicts a Monument to His MemoryLysander Spooner

Yesterday Afternoon, at 12.50 o’clock, one of the most remarkable men who has ever walked the street of Boston departed this life at his residence, 109 Myrtle street. His name, Lysander Spooner, is known to but a few — to fewer perhaps than 30 years ago — but, as John Boyle O’Reilly says, it will some day be honored by millions. The illness which was the immediate cause of his death began about three weeks ago, but did not confine him to his house and bed until a week later. Since then he had been gradually sinking under the combined influence of rheumatism and bilious fever. He would not consent to the calling of a doctor until a few days ago, having bitter antipathy to the medical profession of whatever school, and feeling that he knew his own constitution better than any on could know it for him, and finally when on was summoned he would not take his medicines. However, it made no difference, as the doctor said there was no hope of his recovery. Being of a very sanguine temperament, he would not believe that his illness was fatal until Thursday last. Friday he lapsed into a comatose condition, and from Friday evening till Saturday noon, when he died without [...]

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The Founders’ Constitution:

This year, George Mason Law School inaugurated a new, required first-year course, The Founders’ Constitution, which serves as a prerequisite to the required course in Constitutional Law. A new website for the course explains:

Law school curricular development requires making guesses about the future of legal practice, but that should not mean constantly chasing the latest trend. Too much focus on the latest hot specialty runs the risk of short-changing students’ appreciation of the permanent things in our legal culture. George Mason’s faculty considers it crucial for students to know something about the Constitution and its creation before they attempt to understand what the Supreme Court has had to say about it. Supreme Court case law, not the Constitution itself, is what Constitutional Law courses are conventionally about.

The Founders’ Constitution course will require students to read a large number of important original legal sources familiar to the founding generation, ranging from Magna Carta and the English Bill of Rights to the Federalist (and Anti-Federalist) Papers, along with constitutional debates at the Philadelphia Convention and in the First Congress. While a few law schools offer narrowly-focused elective classes dealing with constitutional history, none has a comprehensive, required course comparable to The Founders’ Constitution. The course, offered for the first time in spring 2008, is a prerequisite to Constitutional Law.

Judges come and go, along with elected officials, but the Constitution endures. It is essential that future lawyers have a fundamental understanding of this central governing document.

More information about the course, including a model syllabus, is available at its website. [...]

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Attorney General Gonzales on Habeas:

There’s been a lot of buzz recently about Attorney General Gonzales’s testimony in which he says “there is no express grant of habeas in the Constitution” and that “The Constitution doesn’t say every individual in the United States or every citizen is hereby granted or assured the right of habeas.” Some have suggested that this is a deliberate claim that there’s no constitutional right to habeas, but my tentative sense is that (1) it’s hard to get that much out of this extemporaneous exchange, which is sometimes not entirely articulate and burdened with interruptions, and (2) more broadly, there’s a lot less to this than meets the eye. Let me explain why, though let me also first stress that I’m not a habeas maven, and I might well be in error on some of this.

1. To begin with, we have to recognize that the habeas exchange happened against the backdrop of Gonzales’s written testimony (which Specter specifically referred to earlier in the hearing). I tend to credit such written and edited materials more than I do oral unscripted exchanges; and here is what this material says, in relevant part:

I am aware that two bills were introduced in the last Congress, and are likely to be reintroduced, that would amend the federal habeas statute by deleting the MCA [Military Commissions Act] restrictions in their entirety. I believe that such proposals to amend the MCA are ill-advised and frankly defy common sense.

The MCA’s restrictions on habeas corpus petitions did not represent any break from the past. Indeed, it has been well-established since World War 2 that enemy combatants captured abroad have no constitutional right to habeas petitions in the United States courts. As the Supreme Court recognized in Johnson v. Eisentrager, 339 U.S. 763 (1950), the extension of habeas

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Just to avoid confusion,

I thought I’d mention that Mirror of Justice, the blog coauthored by several Catholic law professors, is not the same as The Mirror of Justices, a late Middle Ages English legal work.

     According to one source, The Mirror of Justices was once believed to be a Saxon-era work, but was in fact created between the 12th and the 14th century. The Mirror, alongside some other works, is said to have been “as influential as the Bible and Magna Carta in shaping political thought in the [17th century],'” a quality that Mirror would doubtless be pleased to have (changing the century number, of course); and given the era, The Mirror was doubtless written by a Catholic, and was about law, but there the similarity ends (I think). Just thought I’d clarify the matter, since doubtless many readers have been wondering about it.

     Next week:, plus Fleta: The Treatise, The Prison, The Blog. [...]

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