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A major transitional figure in constitutional theory was sir
Edward Coke. Coke was at the center of the struggle to prevent
the first Stuart king, James I, from using the royal prerogative
and the concept of the divine right of kings to interfere with the
constitutional law of England and traditional English rights
(Corwin, 1955; Roberts, C. and Roberts, D. 1980, chap. 13).
Coke represents a shift in the relationship between "higher
law" concepts of authority and the authority of procedural
democratic concepts of law.
In his Second Institutes and as a judge and eventually chief Justice of the King's Bench, Coke attempted to extend the "common right and reason" of natural law and common law to include procedural concepts of due process (Forkosch 19973). In Dr. Bonham's Case (1610), for example, he stated that the Royal College of Physicians, which had been incorporated by Parliament, could not act as judges, ministers, and the recip- ients of fines. In what was to become known as Coke's Dictum He declared an Act of Parliament void:
In Calvin's Case (1608), he stated, "the law of nature cannot be changed or taken away" and "should direct this case." Coke's Dictum has been considered the single most important source of what became in American constitutional law the concept of judicial review. In 1616, after pleading independence of the judiciary in cases involving the king, Coke was dismissed from the bench. He was subsequently, however, elected to Parliament in 1621. There he used the Magna Charta as fundamental law to defend the rights of Parliament, and Parliament as a court, to in turn define and defend the fundamental law. As a member of Parliament, Coke was a major force in developing the Petition of Rights which declared unparliamentary taxation, billeting of troops, arbitrary imprisonment, and marital law over civilians all to be illegal. Coke was now using basically representative procedural methods to validate concepts of due process and traditional English rights. Sir Edward Coke helped to define and defend the concept of constitutional law, the concept of a fundamental law of the land. There is a progression which extends from the Magna Charta, the Petition of Rights, and the english Bill of Rights of 1689, to the Bill of Rights in the United States Constitution. Our own constitutional process affirmed and politically validated what were believed to be certain "higher law" principles. A new synthesis and unity of thought developed in the later part of the seventeenth century based on Isaac Newton's laws of nature (Randalll 1926, chap. XI). The concept was that of an orderly mechanical universe, with the metaphor being that of a clock and God as the clock maker. John Locke used such a concept of nature and God to convert "higher law" concepts into those of the natural rights of the free and equal individual in a state of nature. Locke's natural rights include life, liberty, and property and he intermingled these somewhat by stating that one has a property in his own person. In the social contract of Locke, limited powers are delegated to government be- cause there is a need to define, adjudicate, and enforce laws to protect both society and the safety of the individual. Govern- ment, however, is by consent.7 Society has a right, therefore, to overthrow a government that abuses its delegated powers. Locke is a transitional figure because he helped change the metaphor or paradigm by which we understand political philosophy. His major political work was entitled Two Treatises on Government (1690). In the first treatise he disassembled patriarchy, the prevailing metaphor for hierarchy in both the family and government. In his more famous second treatise, Locked used the concept of a social contract between free and equal individuals in a state of nature to translate theistic and natural law concepts into the language of natural rights for the individual. In the second treatise the individual is perceived to not only have natural rights but also to be the source of auth- ority for government. | |
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