Charter Constitutionalism: The Myth of Edward Coke and the Virginia Charter

54 Pages Posted: 25 Jul 2016  

Mary Sarah Bilder

Boston College - Law School

Date Written: July 22, 2016

Abstract

Magna Carta’s connection to the American constitutional tradition has been traced to Edward Coke’s insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism. A quarter century before the Virginia charter, provisions assuring liberties to English children born overseas were inserted in the earliest letters patent. These provisions drew on an older practice extending liberties to children born overseas. Because of these provisions, persons born in the colonies were guaranteed the same liberties as those born in England. This explanation suggests new appreciation for the interpretive flexibility of early written constitutionalism. As the liberties provisions reveal, words described the underlying concept but were not used to fix a precise definition. Thus, various words could be altered over time to ensure that the concept adapted to contemporary political and legal issues. Throughout, however, the assurance remained that those born in the colonies possessed English liberties. This Article calls this genre of early written constitutionalism “charter constitutionalism” to emphasize this elastic interpretive practice. Charter constitutionalism deserves recognition as a founding strand of American constitutionalism.

Suggested Citation

Bilder, Mary Sarah, Charter Constitutionalism: The Myth of Edward Coke and the Virginia Charter (July 22, 2016). North Carolina Law Review, Vol. 94, No. 5, 2016; Boston College Law School Legal Studies Research Paper No. 409. Available at SSRN: https://ssrn.com/abstract=2813369

Mary Sarah Bilder (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States
617-552-0648 (Phone)
617-552-2615 (Fax)

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