Crack Cocaine, Congressional Inaction, and Equal Protection

By Larkin, Paul J., Jr. | Harvard Journal of Law & Public Policy, Winter 2014 | Go to article overview
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Crack Cocaine, Congressional Inaction, and Equal Protection


Larkin, Paul J., Jr., Harvard Journal of Law & Public Policy


The immediate purpose of Magna Carta was to end a civil war between King John and the English barons. (122) Drafted by the rebellious barons and other opponents of the crown and forced on a politically weakened king, (123) Magna Carta was an intensely practical document, unlike the philosophical statement of principle found in our Declaration of Independence. (124) Indeed, Magna Carta was originally thought to be a failure because the crown and barons resumed their civil war almost be fore the ink was dry. (125) But history has proved the charter's importance long after the death of its signatories.

Because Magna Carta was a written charter bearing King John's seal and committing him and his successors "publicly for all time" to observe its requirements, (126) the charter's "immediate result, apart from the reforms contained in it, was to familiari[z]e people with the idea that by means of a written document it was possible to make notable changes in the law," (127) a proposition that foreshadowed our written Constitution. Another "decisive achievement[] of 1215" was the "shift" from "individual" to "communal" or "corporate privilege," which laid the framework for our Bill of Rights. (128) In 1297, King Edward I placed Magna Carta on the Statute Books of England, (129) and in 1368 Parliament effectively bestowed on Magna Carta the status of a constitution,130 by providing that it would nullify the terms of any inconsistent law. (131) Over the ensuing 800 years, Magna Carta has become one of the foundational laws of Anglo-American legal history. (132)

The critical section in Magna Carta is Chapter 39, a provision that "stands out above all others," (133) perhaps to the point of being "a sacred text, the nearest approach to an irrepealable 'fundamental statute' that England has ever had.'" (134) It provided that "[n]o free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go send against him, except by the lawful judgement of his peers or by the law of the land." (135) By stating that even the king was subject to the rule of law, Chapter 39 imposed substantive and procedural restraints on the crown to prevent King John from abusing royal power. (136) It sought to protect parties against arbitrary detention and punishment by prohibiting such action "except by the lawful judgement of his peers or by the law of the land," (137) a term that Coke construed to refer to "'the Common Law, Statute Law, or Custome of England." (138)

The colonists brought English law, including Magna Carta and Coke's treatise, with them to the New World. (139) The guarantee of "the law of the land" or "due process of law" appeared in the charters of the colonies, in statutes passed by the colonial assemblies, in resolutions of the Continental Congress, in the Declaration of Independence, and in state constitutions. (140) Chapter 39 is the direct historical antecedent to the "cornerstone" principle carried forward into contemporary English law (141) and the Fifth and Fourteenth Amendment Due Process Clauses" (142) No one may be "deprived of life, liberty, or property without due process of law." (143)

Chapter 39 of Magna Carta was a historic guarantee in Western civilization, and it has served as a font of liberty in England and America. Yet, Chapter 39 did not impose any duty on the king to rule, make decisions, or issue edicts of any type. (144) On the contrary, the barons who forced Magna Carta on King John sought to weaken his ability to rule, and they likely would have been perfectly happy if he had left them alone and done nothing. Over time, English law recognized that Magna Carta also limited the authority of Parliament, which cannot enact legislation that conflicts with Magna Carta. But the Great Charter does not require Parliament to legislate at all. (145) The same principle took root in this nation. Early American judicial decisions and treatises regarded due process as a protection against government, including the legislature, not as a guarantee of action by government.

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Crack Cocaine, Congressional Inaction, and Equal Protection
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