The VBA Journal is the official publication of The Virginia Bar Association.
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"Liberties, Privileges, Franchises and Immunities" they would have enjoyed in England. Te right to consent to taxation was, they submitted, "the distinguishing Characteristic of British Freedom, without which the ancient Constitution cannot ex- ist." Te Boston Tea Party brought matters to a boil. Parliament placed Boston under a blockade, enacting what the colonists called the "Coercive" or "Intolerable" Acts. Virginia, like the other colonies, rallied to Massachusetts' support. Gover- nor Dunmore dissolved Virginia's Assembly. Before leaving Williamsburg, the burgesses met in Raleigh Tavern and rec- ommended that each colony appoint delegates to a general congress. When the Continental Congress met, much of the debate focused on just how the colonists' rights should be ar- ticulated. Appeals to the colonial charters and to the British Constitution merged with grounding those rights in natural law. As Samuel Ward noted in his diary, the drafting commit- tee agreed to found the colonists' rights upon "the laws of Na- ture, the principles of the English Constitution, and charters and compacts … ." Virginians Write a Declaration of Rights On May 15, 1776, Virginia's convention, meeting in Wil- liamsburg, instructed its delegates in Philadelphia to intro- duce a resolution for independence. On the same day, the Vir- ginians went to work drafting a constitution for the new state. Actually, they conceived two documents – frst, a declaration of rights and, second, a frame of government. George Mason, of Fairfax County, was the principal architect of the Declara- tion of Rights. His handiwork vividly reveals how Americans of his day blended natural rights and the legacy of British con- stitutionalism. Appearing today as the frst article of the Con- stitution of Virginia, the Declaration opens with statements of principle drawn directly from John Locke and the theory of social compact: Tat all men are by nature equally free and in- dependent and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possess- ing property, and pursuing and obtaining happi- ness and safety. Following closely on the Declaration's propositions about natural rights, one fnds provisions derived from Magna Carta and other English sources, such as the Bill of Rights of 1689. Te most obvious debt to Magna Carta is found in Virginia's declaration that no one shall be deprived of life, liberty or property "without due process of law." Tis echoes the Great Charter's guarantee, in chapter 39, that no one should be pro- ceeded against or prosecuted save "by the law of the land." Americans Write a Constitution In 1787, delegates met in Philadelphia to consider revis- ing the Articles of Confederation. In fact, they wrote a new Constitution. South Carolina's Charles Pinckney admired the British Constitution but said that the British model was "one that will not or cannot be introduced into this Country … ." For the delegates' project, Magna Carta of- fered little guidance. Te barons of Runnymede were not seeking to create a new form of government; they wanted as- surances against the crown's arbitrary actions. By contrast, the delegates at Philadelphia were striking out into new territory. Magna Carta's lessons nevertheless proved relevant. Te Charter, after all, was concerned with power and its limits. When the Philadelphia convention rejected calls for a bill of rights, it planted the seeds of bitter objections to the proposed Constitution. Ratifcation, especially in states such as New York and Virginia, was uncertain. Sensing they must yield some ground, the Federalists accepted that, once the Consti- tution came into force, there must be a bill of rights. Virginia's ratifying convention appointed a committee to draft proposed amendments. Chaired by George Wythe, America's frst professor of law, the committee produced a report that blended precepts of natural law with traditions drawn from Magna Carta and the British Constitution. In the frst Congress, James Madison sifted proposals submit- ted by Virginia and other states. He then produced proposed amendments, 10 of which, once ratifed, became the Bill of Rights. The Lessons of Runnymede During the colonial era, Americans had repeatedly invoked Magna Carta, especially when they voiced their complaints against British actions in the years before the revolution. When Americans turned to writing new constitutions, they were going into terrain the barons of Runnymede could not have imagined. American constitutionalism blends both in- novation and tradition. An example of innovation is the use of judicial review to ensure constitutional supremacy – a marked departure from parliamentary supremacy. Te American debt to Magna Carta, however, remains considerable. In Virginia's Declaration of Rights and in the federal Bill of Rights, especially in the due process clauses, we fnd a tangible bridge to the Charter of 1215. Tere are other legacies as well. Magna Carta stands above all for the principle of the rule of law, for guarding against arbitrary government. When we adapt the protections of due process to new condi- tions, we add to the Charter's teachings about "law of the land." America has no king, and we don't live in a feudal so- ciety. But we seek to balance liberty and order. In that quest, Magna Carta still has much to teach us. ■ WINTER 2014 - 2015 • 23 WINTER 2014 - 2015 • 23 1. Image and text from the traveling exhibit, MAGNA CARTA: ENDURING LEGACY 1215-2015, courtesy of the American Bar Association and the Library of Congress. All rights reserved.