Joshua C. Tate, Southern Methodist University Dedman School of Law, has posted Magna Carta and the Definition of Fundamental Rights, which is forthcoming in the Tulsa Law Review:
The U.S. Supreme Court has long relied on the language of Magna Carta in interpreting the U.S. Constitution, particularly the Fifth and Fourteenth Amendments. In recent years, the Court has concluded that the absence of certain rights from Magna Carta—and the common law tradition more generally—means that those rights ought not to be considered fundamental today. Some Justices of the Court have also crafted a highly restrictive definition of “liberty” on the basis of Magna Carta and the common law texts interpreting it. This Article argues that the Court has viewed Magna Carta too narrowly, and that “liberty” has a broader meaning in the common law tradition. Reviewing the privileges and liberties of medieval cities that were reaffirmed in Magna Carta, the Article concludes that rights to travel, to conduct one’s business without interference, and to avoid the jurisdiction of oppressive courts are all a part of the common law tradition of liberty and should be considered deeply rooted in our nation’s history and tradition.--Dan Ernst
