The Rise of
"Due process" originally meant law of the land, indicating its roots in the
community, common sense, and history. Communities' historical way of
meting out justice constituted "due process. " By noting that the ninth and
tenth amendments of the U.S. Constitution reserve powers and unenumer-
rights to states and localities, the author makes his claim for the moral
superiority of community traditions and institutions over governments.
President Eisen hower's famous is declaration that the people won't obey
laws that they don't respect reflected this commonsense notion that federal
law should respect local and state traditions. The two, federal law and local
law, however, have frequently come into conflict. The federal government
and courts have had to step in to curb the abuse of individual rights and
freedoms by localities and states, as seen in the Miranda rulings, tile Voting
Rights Act of 1965, and abortion rights.
Political history in the West has largely consisted of attempts to put into
action the religious principle-going back as far as Moses and the Ten
Commandments-that rulers must obey the higher law. Israelite leaders, like
their people, often violated the commandments and their covenant with
God. But there grew up institutions-judges and prophets-to hold rulers
and people to the higher law and bring them back to it when they strayed.
In the Christian world, the higher law tradition grew into a fundamental sep- between
religion and politics. From this arose a separate church hierarchythat pronounced rules of conduct binding on rulers as well as subjects.
On several occasions popes officially deposed rulers and encouraged people
"The Rise of Limited Government," by Bruce Frohnen, reprinted from The World I,
Vol. 13, No. 10, October 1998. pp. 22-35.
* THE RISE OF LIMITED GOVERNMENT *
to rebel against them because the rulers had committed serious crimes against the
Within this millennium, religious institutions have not been alone in limiting
rulers' powers. Customs developed into a set of generally accepted standards of
conduct binding rulers. Local authorities resisted encroachments by central
governors on their customary practices, and local associations such as craft guilds
and townships-secured charters allowing them significant autonomy. And within
government itself there arose the principle of separation of powers according to
which political functions must be divided so that no one man or institution call
exercise them all.
* The Rise of Customary Law
The Christian church in the West built a body of canon law on the basis of the Ten
Commandments. Clerics developed rules putting God's law into action in particular
circumstances and relationships and further limiting rulers' powers. For example,
the church refused to recognize marriages not entered into voluntarily, even when
the monarch or his official sought the union. Rulers were bound to respect the
dignity and free will of their subjects, even when this interfered with their dynastic
Particularly in England, over time canon law came to be integrated into the
customary or common law of the land, which was developed after the Norman
conquest by judges who ruled in individual cases in the light of precedent or
custom, with minimal recourse to statutes; it continued to evolve through the end of
the eighteenth century and into the present day. Common law consisted primarily of
local customs governing disputes over property ownership, contracts, and
procedures in the courts. These customs developed into more general rules that
were applied by judges (often the king or local nobles) in particular cases.
One important set of rules in common law related to contracts. When
one person or organization contracted with another, it was assumed that both
parties knew all the contract's provisions-how many goods would exchange
hands, what the price would be, and so on. If one party sought to change any
of these provisions, say by telling the purchaser that he must pick up the
goods rather than delivering them to his principal place of business, the other
party was not necessarily bound by the contract any longer. Only if the other
party agreed to this change in the contract's terms, either by saying so or by
accepting the goods without protest, would the contract still be considered
valid. The assumption that goods would be delivered to the purchaser's place
of business was based on custom. The assumption that parties should only be
THE RISE OF LIMITED GOVERNMENT
Limiting Rulers' Powers
• Western political history has largely consisted of attempts to make
rulers obey the higher law.
• In England, judges used the customary or common law of the land,
developed after the Norman Conquest and based on precedent or
custom, to decide particular cases.
• King John signed the Magna Carta in 1215, covenating with his nobles
to cease violating their accustomed rights.
• King James' attempts to gain absolute power gave rise to the theory that
political power must be separated between the king and Parliament.
• English principles of limited government were an established inheritance
for America, and were enshrined in the American Constitution.
• The Constitution's central guarantee individual and community rights
lies in its limitations on the power of any branch of government to act
held to contracts concerning which they know all the relevant provisions was based
on customary notions of fairness.
The common law became so ingrained in the people's lives that nobles and
kings ignored them at peril of dissension and rebellion. "The law of the land" -what
lawyers today refer to as due process of law-became sacred to the people; they
would fight and die to protect their right to be treated and judged according to the
customary rules of their country and not merely the whim of the king.
The Strength of the Nobles
It was to defend the law of the land that English nobles rebelled against King John
in the early thirteenth century. They were successful largely because John, like most
European kings during this era, was relatively weak. There were few formal checks
on his power, but he lacked the imperial apparatus that had allowed Roman
emperors to impose their will on people thousands of miles away. Early European
kings had only their swords and the small
THE RISE OF LIMITED GOVERNMENT
court they took with THEM to the various parts of their lands to hand out justice
and keep recalcitrant nobles in line.
Nobles were sworn to serve the king, but most of the time they were the sole
authority in their localities. The people and the soldiers owed their primary
allegiance not to the king but to the local lord. When King John sought to become
an absolute ruler, his nobles had the motivation and the means to keep him in
check. After the battle at Runnymede in 1215, they forced him to sign the Magna
Carta, a document that played a central role in the rise of limited government.
The Magna Carta and
Through the Magna Carta, King John covenanted with is nobles to cease violating their accustomed
rights. The king had begun taxing without consulting any council or parliament. He had overridden
towns’ and cities’ historic practices of levying their own taxes and regulating their own commerce.
He had kept the power to judge solely in his own hands, denying justice to those unable to find his
court in time to be heard. He had taken property from his subjects without their consent and without
compensation. Perhaps worst of all, he had denied trial to his subjects according to English custom.
Jury trials, protection from forced confessions, and other aspects of due process were denied so that
the king could convict whomever he pleased.
The Magna Carta spelled out the English people’s fundamental rights. But it was no Bill of Rights
as we currently understand that term. It did not proclaim abstract, universal rights for all mankind.
Instead, it listed and declared inviolable Englishmen’s most important inherited practices.
These practices came to be called rights because the people over time developed moral title to
them. Because the English people(or at least their nobility) had for centuries been consulted before
new taxes were levied, had been granted jury trials, and so on, it became unacceptable for the
monarch treat them in any other way. A ruler who dispensed with these rules was acting against the
rightful expectations of his people. To revoke these rights, he would have to act in an arbitrary
manner, no doubt with great force and bloodshed, against his own people.
The English regarded the Magna Carta as a covenant between king and people. Whereas rulers on
the Continent treated charters as grants from the king, which he could revoke at will, the English
held their king bound to his charters because he was bound, like everyone else, to keep his word.
also were bound because it was the institution of the throne that covenanted with the people. The Magna
Carta bound monarchs by the higher law to respect the common law rights it declared. It also specifically
bound the king to respect the lesser charters he had granted to cities, townships, and other organizations, such
as craft guilds and corporations. These charters protected local associations from interference in many of their
affairs and allowed them to develop into significant forces limiting the central government's power.
During the seventeenth century, Charles I sought to undermine the Magna Carta, claiming his inherited
rights trumped its provisions. This led Parliament to pass the Petition of Right, which essentially restated the
Magna Carta, reasserting its inviolable status. When Charles' violations continued, the English Civil War
ensued. Charles' enemies won the war, in part because local charters had allowed more and more people to
engage in commerce, local politics, and other activities, making them more powerful and giving them more to
lose under an arbitrary monarch. His foes in Parliament had a burgeoning middle class on their side, along
with well-trained local troops.
Charles was executed, but-after several years under the dictatorship of Oliver Cromwell-the English
welcomed Charles' son, Charles II, to the throne. Charles II was not foolish enough to question the Magna
Carta or the Petition of Right, but he proceeded to undermine the local charters that had undone his father.
Charles II's brother and successor, James, also Sought absolute power. He accelerated his brother's attempts
to revoke local charters through intimidation and legal trickery. He sought to issue new town charters that
* THE RISE OF LIMITED GOVERNMENT *
new taxes were imposed. This had led to the rise of a
powerful Parliament and to the principle of no taxation
without representation. Representation is by no means
democratic. In some areas only a few tenants or the lord
himself could vote. But by seeking to alter this
representation, including for towns where it was enjoyed
by many prominent men, James convinced the bulk of the
ruling and middle classes that he sought to gather to
himself the exclusive right to legislate for England.
Along with parliamentary power there had risen the
theory that political power must be separated
between the king and Parliament. Only in this way
would kings reign under the law and be subject to it
(through their ministers if not directly). Parliament
should make the laws because its members would be
directly subject to them and better reflect the wishes
and interests the nation.
James' trespasses cost him the throne. William of Orange (James' son-in-
Law) landed in England with a small Dutch army and was soon accepted as
the rightful monarch. One precondition, however, was William's signing the Declaration of
Right, reiterating the Magna Carta and emphasizing Parliament's rightful powers.
English principles of limited government-respect for custom, local autonomy chartered rights, and
separation of powers-were for Americans all established inheritance inheritance. The common law
was the basis for most local rules and defined the rights for which Americans fought the War for
independence. From the 1760s on, the English government violated common law rights, such as
those against searches and seizures without specific warrants and the right to trial by jury.
Moreover, Parliament indicated that it would not respect any common law rights in America.
When Parliament rescinded the taxes on stamps and other goods that
Americans had loudly protested, it also passed the Declaratory Act, asserting
England's right to govern America as it saw fit. This meant that the rights of
Englishmen would be denied to Americans and that the local autonomy that
had become their way of life would be destroyed. Where before colonies had
made their own laws, subject only to rare royal vetoes justified on the grounds that the specific law was
repugnant to the laws of England, now local would be revoked in England at will.
Chartered rights were also threatened. The Puritans journeyed from
England to New England under a corporate charter granted by the king and
managed their own affairs under that charter. Massachusetts even adopted its
* THE RISE OF LIMITED GOVERNMENT I *
own Body of Liberties, a covenant binding local rulers to obey common law rights and the moral
law of Christianity, in 1641.
In America's eyes the English government had broken its covenant with America in the same
way James II, Charles I, and John had broken their covenant with the English people. England
was seeking arbitrary power over America in violation of chartered rights and the common law.
Further, the Declaratory Act showed England's intent to destroy Americans' local legislatures.
When colonists spoke of separation of powers, they meant powers
within the colonies and a separation between colony and mother country. Colonies had
legislatures as well as (royally appointed) governors. It was to their local legislatures that they
looked for protection and representation. When they cried "no taxation without representation,"
they were defending the exclusive right of their local legislatures to levy taxes. If they could no
longer control their taxes through their legislatures, Americans reasoned, they soon would be
enslaved. It became necessary to declare independence.
Rights and The Constitution
Many Americans look to the Declaration of Independence as the source of
their freedom because it declares that all men are endowed with "certain
inalienable rights," including life, liberty, and the pursuit of happiness. But
one should keep in mind that it was not looked to as a crucial document during
the founding era. Nor was its brief mention of inalienable rights seen as a
anything more than an abstract explication of more specific rights enumerated
in the body of the text. Most of the document is a list of grievances against
the king (as the personification of English government), charging England
with attempting to destroy local colonial government and autonomy, violating accustomed
rights, and gathering to itself powers properly left to colonial
legislatures and courts. The Declaration of Independence was no fundamental
charter, nor did it constitute Americans as a people, instead declaring each of
colony an independent state.
The United States began as a nation under the Articles of Confederation.
These articles established an extremely limited central government, with a
legislature representing states equally and requiring unanimity for action.
States would confederate only in times of pressing need.
But this document did not allow the states to meet the pressing need to establish a common
currency, protect contracts from corrupt local legislatures, has and keep goods moving freely
among states. The Constitution was written to solve this limited set of problems. New powers
were granted the central government, but these powers would be exercised by separate,
THE RISE OF LIMITED GOVERNMENT
branches, and the government's right to interfere with states and local's would be limited.
In the tenth essay of The Federalist Papers, Publius argued that the Constitution would more effectively
limit government than had the Articles Confederation. State legislatures suffered, in Publius' view, from
too many and too powerful factions. Local majorities formed to cancel debts and violate contracts. This
would not happen under the Constitution, because the central government would protect contracts while
itself being severely limited.
By separating legislative from executive and judicial functions, the Constitution limited federal power.
The president would be the servant of law, implementing congressional acts. Courts would be independent
and so could enforce the law as written. And Congress would be able to act only passing laws, never by
acting above or outside the law. In addition, each branch would jealously guard its powers and check
attempted expansions by
the other branches.
Most of the Constitution's drafters believed it guaranteed the people's rights by limiting government.
They thought a bill of rights unnecessary and perhaps dangerous, by making it seem that only enumerated
rights were protected. But their opponents, fearing federal invasions of local rights, demandand got a bill of
The Constitution's first eight amendments declare and elaborate on customary inherited rights (the ninth
and tenth reserve powers and unenumerated rights to states and localities). Like the Magna Carta, the
Petition of Right, and the Declaration of Right, the Bill of Rights emphasizes due process, spelling out
rights against unreasonable search and seizure, forced confessions, and trial without jury. It also guarantees
political activities such assembling to petition the government and free speech against federal suppression.
And it reinforces the Constitution's limits on federal power by protecting states against interference with
their laws regarding the establishment religion (the Second Amendment refers only to the federal
government and left undisturbed a number of established churches in the states).
But the Constitution's central guarantee of individual and community rights lies not in its Bill of Rights
but in its limitations on the power of any branch of government to act unchecked. In addition, the
Constitution's drafters knew that only a virtuous people could maintain limited government. As Georgetown
University professor of government George W. Carey has pointed out, the Constitution could not provide
the virtue on which it relies. This task was left for the local and religious institutions that limited
government would protect.
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The founders feared any government that might undermine the local institutions
in which virtue is taught. To do away with local customs an institutions, even in the
name of equality and justice, is to make virtue an limited government impossible. The
last two centuries have produced many cruel experiments in the political teaching of
virtue. The result has not been the justice and equality promised but rather political
mass murder and the sweeping away of customary rights. From the French
Revolution of 1789 to the Russian Revolution of 1917, Europe saw a series of
tyrannies formed in the name of liberty, equality, and fraternity. But the French
Revolution ushered in a Reign of Terror, followed by almost a century of violence
and political instability. The Russian Revolution likewise brought oppression and
mass murder-and likewise ended in social, economic, and political failure.
Where regimes founded on supreme power have failed in a matter of decades at
most, America's limited, constitutional government remains vital after more than two
hundred years. History would seem to indicate that rededication to limited
government and the virtues and institutions necessary to maintain it is the surest
means by which we can revitalize the well-ordered liberty sustaining our way of life.
* Bruce Frohnen is coeditor, with George W. Carey, of Community and Tradition:
Conservative Perspectives on the American Experience (Rowman and 1998) and
the author of The New Communitarians and the Crisis of Modern Liberalism
(University Press of Kansas, 1996).
1. If states like California legalize the use of marijuana for medical reason should
the federal government fight it or accept it? Using the arguments of the author,
why or why not? What about the regulation of handguns?
2. Conflict between the different levels of government- federal, state, all local-
frequently spills over into the courts. Without knowing the specifics of the case,
which level of government would this author favor if he were the judge?
3. Given its virtues, should a limited government apply to local and state
governments as well, or only to the federal government?