In the Shadow of the Great Charter

In the Supreme Courts 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. Pallittos work, with its insight into competing ideas about interpreting the Constitutionoriginalism versus constitutional common lawis of critical importance to our understanding of the nations founding document. Of far more than symbolic significance, the Magna Carta exerts immediate practical influence on legal outcomes, as Justice Kennedys opinion demonstrates. To explain this, Pallitto first goes into the Charters origins, history, and nature, especially its explicit use of the law of the land to protect subjects rights and liberty. The Magna Cartas legacy in the United States reaches back to the nations founding, with even the colonial charters reflecting its influence. But it is in the Supreme Courts reference to the Charter, spanning the institutions full two-hundred years, that Pallitto finds the greatest impactmost 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 lawthe 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 Cartas influence on the contemporary jurisprudence of individual rightsfrom the legal thought of the American colonies through exemplary cases over the history of the Supreme Courtthis book offers resounding evidence of the evolution and value of abiding principles through which American liberty endures.