ICAS Special Contribution

No. 2002-0703-AMR

Response to Lord Goldsmith

Albert M Rosenblatt

Institute for Corean-American Studies, Inc.

965 Clover Court, Blue Bell, PA 19422

Tel : (610) 277-9989; (610) 277-0149
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Biographic Sketch & Links: Albert M Rosenblatt

[Editor's note: We gratefully acknowledge a generous contribution, with a written permission, of this paper of Albert M Rosenblatt to ICAS. This paper was a response to the paper "Common Law Common Bond" by The Right Hon The Lord Goldsmith QC, Her Majesty's Attorney General, Magna Carta Exhibit Luncheon, Downtown Club, Philadelphia: sjk]

Magna Carta Exhibition
Response to Lord Goldsmith

Philadelphia, Pennsylvania
July 3, 2002

Albert M Rosenblatt*

Lord Goldsmith, and honored participants. If we were to consult an encyclopedia and turn to Magna Carta, it might begin with 12 words:
"Issued by King John in June 1215, under compulsion from his barons. . . ."
Well . . . yes. We can't deny that the barons were motivated by baronial concerns, but Magna Carta has become synonymous with universal human rights. As a monumental charter of legal and administrative reform, it has taken on a unique stature in the history of law and governance. As an American, I trace my condition to Magna Carta. For us, it is at the root of our republic, and it gives us our political heartbeat.

Magna Carta reflected the stirrings of a people who began to recognize that no government or sovereign --however much loyalty or fidelity it has gained or even earned-- may stand above the people and rule with arbitrariness or caprice. Magna Carta has come to represent a turning point in the history of free peoples in their relationship with their governing authority. In tracing the epochs before and after Magna Carta, I'm drawn to a parallel in which relay runners carry a baton and pass it along as they complete their leg of the journey. We can say that, like a relay, Magna Carta's history is marked by four segments. The first represents the years before 1215 and stems perhaps from our classical notions of natural law, as when Antigone told King Creon that he could not stand above the law and deny a burial to her brother Polynices. The second, of course, took place between Staines and Windsor at Runnimede, on the 15th day of June 1215 (which is to say 18 days and 707 years ago).

Magna Carta's Article 39 contains the majestic language that has inspired the thoughts of free people and all who aspire to freedom:
" that no freeman shall be taken, or imprisoned, or exiled, or in any way destroyed except by the legal judgment of his peers or by the law of the land." (emphasis mine)
And in the article that follows:
" . . . that to no one will we sell, deny, or delay right or justice. . ." (emphasis mine)
From these words we derive our constitutional right to speedy trial and equal protection under the law . . . and perhaps the most miraculous thing of all: rule by the consent of the governed.

Magna Carta may have been forced out of King John by the barons , but as it reads it is addressed to a much wider class:
"John, by the grace of God, King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou: to the archbishops, bishops, abbots, earls, barons, justices, sheriffs, reeves, ministers, and to all bailiffs and faithful subjects." (emphasis mine)
Here, he speaks to us --and ultimately to all lovers of freedom in the centuries that followed.

The third leg took place 561 years later, in the first few days of July 1776. The torch of liberty was given over to us -- rekindled you might say-- in Philadelphia, and it cast its light throughout our fledgling nation. King George III and others may have parted with it with some reluctance (owing to a slight misunderstanding over taxes, as Lord Goldsmith has charitably pointed out, and, I might add, a dispute over non- decaffeinated tea), but they had surely set the course by giving us our inalienable endowment.

We have carried this treasured legacy, but we have not done so alone. As an example to the world, we have maintained the flame jointly with our sponsors, who visit us here today. Lord Goldsmith and the United Kingdom for which he speaks. Together, our two nations have carried this banner of freedom for over two centuries, arm in arm, through the first World War, to the 1941 Atlantic Charter forged by Franklin Delano Roosevelt and Winston Churchill, through Lend-Lease, through Normandy, through the liberation of Europe, to the creation of the United Nations Charter, and at Nuremberg . . . and today we carry our heritage jointly in a new era of deadly conflict with those who would destroy the lofty values that have bonded us together.

The concept of Magna Carta has found expression in this nation's jurisprudence - -our commitment to due process of law. That commitment epitomizes all we believe in as Americans --and the values we share with our British cousins.

The courts of the United States rest on the concept of due process of law and the balance between individual rights and the collective needs of any population to protect itself. My computer tells me that American courts have used the phrase "Due Process of Law" 114,937 times, but that's only in our reported decisions, and that figure was good only up through this past Monday. I'm particularly gratified that Lord Goldsmith, in tracking the path of the common law, made reference to the Court on which I serve. I can only add that the phrase "due process of law" goes back to the reign of Edward III, but it appeared in a New York statute in 1787, four years before it made its way into the Fifth Amendment.

When King John acceded to the "law of the land," he could not have foreseen that this phrase, let alone the enlarged concept, would be carried across the Atlantic to provide the scaffolding for a new nation and a system of law that mediates between the rights of the individual and the interests of government. Nor would he have imagined that his compact with the barons would serve as a model for the world: that the government does not own the people; it is the people who own the government.

The fourth leg is before us and is yet to be run. It represents our future. Over the last seven centuries, the world has improved on the promise of Magna Carta. We no longer speak of freedom for a privileged few but for all people who subscribe to the law of the land. Today I feel privileged beyond words to be part of this ceremony of liberty -- and so I shall use no more words and conclude with confidence, and with optimism, that the rule of law, which has given us our fibre and our birthright, shall continue to light our partnership in the millennia to come.

* Judge Albert Rosenblatt, New York Court of Appeals.

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