The Magna Carta, Due Process, and Administrative Power

Magna Carta’s importance lies in what it reveals about the enduring danger of absolute power and the repeated constitutional responses in common law countries of its substitute—rule under law. Article 39 of Magna Carta in particular stands at the head of our constitutional understanding of the due process of law. It barred prerogative or administrative adjudication, by which rulers evaded the regular processes of the courts.

Due process in the US has shifted from something guaranteed to something merely optional because of administrative power, which denotes a practical evasion of due process and an evisceration of the entire concept. Administrative power, as expressed through extralegal adjudication, poses the gravest threat to the Bill of Rights.

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