In the Shadow of the Great Charter: Common Law Constitutionalism and the Magna Carta

In the Supreme Court’s 2008 ruling on whether Guantanamo detainees could be barred from U.S. courts, Justice Anthony Kennedy cited the U.S. Constitution, of course. But he also linked the decision to the Magna Carta. Why would a twenty-first-century judge, even under the extraordinary circumstances of the “war on terror,” invoke a document signed by an English king in the thirteenth century? To address this question, as Robert Pallitto does in this clarifying book, is to probe the history of modern civil liberties, and to explore the process by which judges decide individual rights cases. Pallitto’s work, with its insight into competing ideas about interpreting the Constitution—“originalism” versus “constitutional common law”—is of critical importance to our understanding of the nation’s founding document.

Of far more than symbolic significance, the Magna Carta exerts immediate practical influence on legal outcomes, as Justice Kennedy’s opinion demonstrates. To explain this, Pallitto first goes into the Charter’s origins, history, and nature, especially its explicit use of “the law of the land” to protect subjects’ rights and liberty. The Magna Carta’s legacy in the United States reaches back to the nation’s founding, with even the colonial charters reflecting its influence. But it is in the Supreme Court’s reference to the Charter, spanning the institution’s full two-hundred years, that Pallitto finds the greatest impact—most frequently in the principles of due process (in criminal proceedings) and habeas corpus, but in many other provisions as well. And the weight of this impact registers most deeply and clearly in the development of the constitutional common law—the theory that courts should and do interpret and expand on constitutional texts by reference to tradition and precedent rather than to the drafters’ original intent.

Charting the Magna Carta’s influence on the contemporary jurisprudence of individual rights—from the legal thought of the American colonies through exemplary cases over the history of the Supreme Court—this book offers resounding evidence of the evolution and value of abiding principles through which American liberty endures.

About the Author :
Robert M. Pallitto is associate professor of political science at Seton Hall University, USA. He is the author of Torture and State Violence in the United States: A Short Documentary History and, with William G. Weaver, Presidential Secrecy and the Law.

Review :

"An interesting worthwhile addition to the celebration of the important role of Magna Carta in our continuing constitutional debates."--Law and Politics Book Review

"Pallitto provides a comprehensive look at the Magna Carta by examining its influence on the colonies, pre-Civil War slavery cases, federal common law, the "rights revolution" of the Warren Court and its contraction by the Rehnquist Court, and the recent claims of executive authority to detain indefinitely those classified as "enemy combatants" in the so-called war on terror. This work is comprehensive and an extremely good read."--Choice

"Well suited for readers who are comfortable with a thorough legal analysis of the theory of common law constitutionalism. Pallitto makes a distinct contribution to this field in his discussion of how the fundamental principles, which have come to be associated with Magna Carta, relate to habeas corpus and the War on Terror."--Los Angeles Review of Books

"Robert M. Pallitto thoroughly explores the historical and contemporary influence of the Magna Carta on law and courts in the United States, including in cases on the issues of slavery, the incorporation of the Bill of Rights, the writ of habeas corpus, and individual liberties during the 'war on terror.' He masterfully explains why the Magna Carta has been a key component of American jurisprudence and continues to serve as an important legal guide today, making In the Shadow of the Great Charter a must read for any scholar of the Constitution."--Eric T. Kasper, author of Impartial Justice: The Real Supreme Court Cases that Define the Constitutional Right to a Neutral and Detached Decisionmaker