OH, GEORGE:

Single-theory interpretations of the founding era, along with those that picture it in terms of a battle between the forces of good and evil, are now often viewed as presenting only a partial, and sometimes distorted, account. There is increasing awareness that multiple influences and motivations were operating within the founding generation. This awareness produces an even more confusing account of the era, but one that is also probably more faithful to reality.

The colonists clearly sought to preserve the better portions of their English heritage. They had long enjoyed the common law rights and protections that had emerged from the English tradition. To take but one example, Article 39 of the Magna Carta (1215), the foundational document of English liberties, provides: "No freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land." Five centuries later, we find that among the rights listed in the Massachusetts Constitution of 1780, widely regarded as the Rolls-Royce of the state constitutions adopted after the Declaration of Independence, is the guarantee that "no subject shall be arrested, imprisoned, despoiled . . . or deprived of his life, liberty, or estate; but by the judgment of his peers, or the law of the land." Beginning in the middle of the seventeenth century, the phrase "due process" gradually came to replace the expression "law of the land," so that we may say that the origins of the "due process" clauses of the Fifth Amendment and the Fourteenth Amendment to the Constitution, among other liberties we enjoy, are found in the Magna Carta.

The Revolutionary War, many scholars contend, was a "reactionary" revolution in the sense that the colonists were fighting for a restoration of the English liberties that they had once enjoyed during the "benign neglect" period. Edmund Burke, the great English statesman of the founding era who sought reconciliation with the colonies, argued that the colonists' discontent stemmed from the deprivation of liberties to which they had grown accustomed. Certainly their claim of "no taxation without representation" and their protests against illegal searches and seizures and the housing and quartering of troops possessed great weight because they were based on the common law. In fact, many of the grievances against King George III that constitute the bulk of the Declaration of Independence concern Britain's violations of the common law.

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