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If English and American constitutional thought rests on one shared foundation, it is the principle that executive power, in order to be legitimate, must be subject to law. In the thirteenth century, the English jurist Henry de Bracton declared that "the law makes the King"--rather than the King makes the law--and urged, "Let the King ... bestow upon the law what the law bestows upon him, namely dominion and power, for there is no King where will rules and not law" (White 1908, 268). Bracton no doubt had in mind some of the recent provisions of the Magna Carta (1215), which provided a formal codification of this principle. The rebel barons who imposed the Magna Carta on King John were animated by a desire to limit arbitrary executive power, and, in Article 39, they secured a promise from the monarchy that "no free man shall be arrested or imprisoned, or disseised or outlawed or exiled or in any way victimised, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land" (Turner 2003, 231). In the fourteenth century, Article 39 was redrafted by Parliament to apply not only to free men but also to any man "of whatever estate or condition he may be," and this process of reinterpretation continued throughout the next several centuries as Parliament expanded "the Charter's special 'liberties' for the privileged classes to general guarantees of 'liberty' for all the king's subjects" (Turner 2003, 3).
The principle that a person ought not be "in any way victimised ... except by the lawful judgment of his peers or by the law of the land" was given legal force in the common law through the writ of habeas corpus, which allowed an individual to challenge the grounds of his detention or molestation. As Bailyn notes, moreover, the American "colonists' attitude to the whole world of politics and government was fundamentally shaped by the root assumption that they, as Britishers, shared in a unique inheritance of liberty" (Bailyn 1967, 67). As such, the Charter's principle of individual liberty was so well enshrined in the canons of jurisprudence operating in the American colonies that...