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Basic Constitutional Concepts
One may trace the rise of this principle in English history all the way
back to the signing of Magna Charta in the year 1215, when King John
found it necessary to guarantee his obedience to English laws. For that
matter, medieval English writers on law derived their understanding of
the rule of law from ancient Roman jurisprudence.
‘‘The king himself ought not to be under man but under God, and under the Law, because the Law makes the king. Therefore let the king render back to the Law what the Law gives him, namely, dominion and
power; for there is no king where will, and not Law, wields dominion.’’
So wrote Henry de Bracton, ‘‘the father of English law,’’ about the year
1260, during the reign of Henry III. This teaching that law is superior to
human rulers has run consistently through English politics and jurisprudence all the way down the centuries. It was rather belligerently asserted
from time to time by the English colonies in North America.
This doctrine that no man is above the law applied not only to kings
but also to legislative bodies and judges. Sir Edward Coke, we saw earlier, fiercely resisted not only attempts by King James I to interpret the
law for himself but also Acts of Parliament that contravened the common
law. Citing Bracton as an authority, he asserted that ‘‘the king must not
be under any man, but under God and the law.’’ In Dr. Bonham’s Case
(1610), Coke laid down the principle of judicial review, claiming that
judges had a right, when interpreting Acts of Parliament, to declare them
null and void if they conflicted with established principles of law and
justice. ‘‘And it appears in our books,’’ said Coke, ‘‘that in many cases,
the common law will control Acts of Parliament, and sometimes adjudge
them to be utterly void; for when an Act of Parliament is against common
right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.’’
That the English had turned their backs on their own tradition and respect for rule of law was the principal grievance of American colonial
leaders. In his famous pamphlet The Rights of the British Colonies Asserted
and Proved (1764), James Otis wrote:
To say the Parliament is absolute and arbitrary, is a contradiction. The
Parliament cannot make 2 and 2 [equal] 5. . . . Parliaments are in all cases
to declare what is good for the whole; but it is not the declaration of parliament that makes it so. There must be in every instance a higher