Vol. 26 No. 5 (September 2016) pp. 85-86
THE SHADOW OF THE GREAT CHARTER: COMMON LAW CONSTITUTIONALISM AND THE MAGNA CARTA by Robert M. Pallitto. Lawrence Kansas: University Press of Kansas, 2015. 234 pp. Cloth $29.95. ISBN: 978-0-7006-2091-3.
Reviewed by Walter J. Kendall III, Professor Emeritus, The John Marshall Law School. Email: firstname.lastname@example.org.
The Magna Carta is an 800 year old Anglo-Norman document written in Latin. It represents a very short lived peace treaty between King John and his Barons. What if anything of it is alive and operative in constitutional debate today? Robert Pallitto’s IN THE SHADOW OF THE GREAT CHARTER: COMMON LAW CONSTITUTIONALISMS AND THE MAGNA CARTA is one of several recent books revisiting the contemporaneous history of and/or appraising the present relevance of Magna Carta. Dan Jones’ MAGNA CARTA: THE BIRTH OF LIBERTY focuses on the events leading up to and immediately following the sealing of the original Magna Carta in June of 1215 at Runnymede. Similarly and in much more scholarly depth and detail so does David Carpenter’s MAGNA CARTA. The most entertaining, but nonetheless fundamentally sound of such books is 1215: THE YEAR OF MAGNA CARTA by Danny Danziger and John Gillingham. A book that offers a history from the bottom up, a “people’s” history is THE MAGNA CARTA MANIFESTO: LIBERTIES A COMMONS FOR ALL by Peter Linebaugh.
Pallitto’s book is both a chronological series of short essays on how the U.S. Supreme Court has relied on the Magna Carta in developing its understanding of individual rights, and an argument that the best method of Constitutional interpretation, is “common law constitutionalism.” Pallitto has adopted the understanding of the concept introduced by David Strauss in his seminal article (Strauss 1996) and defended in his book on the living constitution (Strauss 2010). Pallitto offers the following from Strauss as a summary of the attributes of common law constitutionalism: “Intellectual humility, a sense of the complexity of the problems forced by our society, a respect for the accumulated wisdom of the part, and a willingness to rethink when necessary and when consistent with those virtues.” (p. 185-86)
There is discussion both at the beginning and the end of the book of the ongoing and intense debates about constitutional interpretation in the academy and more importantly between the justices of the Supreme Court. For instance, Justice Scalia famously argued for an originalist understanding of the text. Justice Breyer, on the other hand, equally argues for an approach that considers the Constitution as a "living" document subject to updating by the Court in light of current circumstances and understandings. As I understand it, Pallitto's approach is more flexible and open than that of Justice Scalia, but more constrained by prior Court decisions than Justice Breyer's "living Constitution".
Pallitto links the Magna Carta in separate chapters to the questions of rights as understood in the 17th and 18th centuries; slavery; federal common law; the Warren Court rights revolution; the Rehnquist Court’s narrowing interpretation of habeas corpus; and the war on terror. For example, in chapter 2 Pallitto discusses English and early American constitutional thinking which recognized the relevance of experience to interpretation. In this period the Court recognized the dual purposes of the Constitution; one to protect the liberty of people, and the other to limit “natural” freedom so as to create a functioning society. In Chapter 3 the Court’s approach to the slavery question illustrates its efforts to balance the literal text which implied the legitimacy of slavery with experience and evolving views of human dignity; the Dred Scott decision not with standing.
Pallitto next skips to the late 19th and early 20th [*86] century. The Court rejected its previously used authority to rely on experience and precedent to develop new understandings of the law. That view was aggressively challenged by the Legal Realists. The Realists argued in the words of Justice Holmes that the “life of the law has not been logic; it has been experience.”
Subsequently, influenced in part by a sense that laws and regulations were not operating fairly and had unequal impact on large numbers of people, the Court began to see the values of the Bill of Rights, rather than just its literal text as limitations on the authority of all levels of government, federal, state and local. The classic example of this approach is BROWN V. BOARD OF EDUCATION OF TOPEKA.
The Burger and Rehnquist Courts significantly did not reject this view of the role of the Court. Rather it on a case by case basis challenged and limited the expansive understanding of particular rulings of the Warren Court by limiting claimants access to the courts by narrowly interpreting habeas corpus. Habeas corpus was an ancient notion that insured no on was denied access to at least some minimum of judicial review of government action alleged to violate a person’s rights, especially to liberty. This was particularly clear in cases involving questions of law and order.
Pallitto brings this history up to date by reviewing the Court’s recent cases on the rights of persons caught up in the war on terror. Despite its deference to the authority of the President in matters of war and national security the Court has insisted that persons affected be given a “meaningful opportunity” to challenge the government expressly relying in part on the Magna Carta. In that sense as Pallitto says “we have come full circle from 1215, when the English barons complained of unchecked executive power…”
All in all IN THE SHADOW OF THE GREAT CHARTER is an interesting worthwhile addition to the celebration of the important role of Magna Carta in our continuing constitutional debates.
Carpenter, David, 2015. MAGNA CARTA. New York: Penguin Classics.
Danziger, Danny and Gillingham, John, 2005. 1215: THE YEAR OF MAGNA CARTA. New York: Touchstone Books.
Jones, Dan, 2015. MAGNA CARTA: THE BIRTH OF LIBERTY. New York: Viking Penguin Random House.
Linebaugh, Peter, 2008. THE MAGNA CARTA MANIFESTO: LIBERTIES AND COMMONS FOR ALL. Berkeley: University of California Press.
Strauss, David, 1996. “Common Law Constitutional Interpretation.” UNIVERSITY OF CHICAGO LAW REVIEW 63: 877-938.
Strauss, David, 2010. THE LIVING CONSTITUTION. New York: Oxford University Press.
BROWN V. BOARD OF EDUCATION OF TOPEKA, 347 U.S. 483 (1954).
© Copyright 2016 by author, Walter J. Kendall, III