2015 marks the eight hundredth anniversary of Magna Carta. This “Great Charter” of England is seen by many Americans as central to the development of our constitutional tradition. Ironically, the English do not share this high opinion of the document. For most English, perhaps especially most English politicians and constitutional lawyers, Magna Carta holds little if any interest, let alone importance. The reasons are relatively easy to explain and helpful in understanding why Americans do—and should—continue to value what their English brethren ignore. In essence, the constitutional tradition so powerfully advanced by Magna Carta was subjugated in England during the early modern era and, while some aspects of that tradition were revived in later years, it was in America that they achieved much greater importance and stability than in England. And it is in America where the constitutional protections we still enjoy are under attack as part of an assault on due process and the multiplicity of authorities buttressed by Magna Carta.
Magna Carta was “adopted” in 1215. That is, it was not enacted as a formal statute but rather signed by King John as a charter, a grant of rights and liberties to his English subjects. As a charter, Magna Carta was in many ways like the king’s grant of rights to a particular borough or town, but here granted to all his English subjects. As with many such charters, it was presented as a document recognizing preexisting rights rather than simply an unearned gift from an absolute monarch. Also like some other charters, it was “granted” less out of kindness or as a sign of royal favor than in recognition that the king had lost a major battle with powerful subjects and so now had to promise to respect their rights in exchange for keeping his throne.
Magna Carta “happened” because John lost his battle against the barons at Runnymede. King John did not really sign the document voluntarily. Indeed, after he was safely home, John went to the pope to have Magna Carta annulled on the grounds that his signature was coerced, hence invalid. The pope obliged, but the English barons would not be defeated, and the document was reissued a number of times in later years.
The English view is that Magna Carta was seldom respected or followed by either side in battles over royal power, and so has only antiquarian value as an object of political struggle. And there is something to this argument in the English context. The document’s two greatest contributions to constitutionalism, maintenance of a separate, religious authority capable of calling temporal rulers to account for their actions and establishment of due process of law as a right of all subjects, struggled more for recognition in the mother country than in her colonies, and to this day are considered less important in England than in the United States.
Written by Stephen Langton, Cardinal and Archbishop of Canterbury, Magna Carta begins and ends with the declaration that the English church “shall be free.” This was done to recognize the right of the pope to name his own bishops, rather than having to bow to the demands of kings who sought to make church leaders into followers of the royal will. It also recognized the right of various church organizations and ecclesiastical courts to operate freely within the kingdom. This was no small victory for the church, or for constitutional government, because it recognized and solidified a legal as well as moral and economic jurisdiction separate from that of the monarchical state.
The church was no mere private or even liturgical institution at this time, having responsibility for marriage law, care of the poor, and management of vast tracts of land and associations of monks, nuns, and other religiously affiliated groups. All this ended, of course, with King Henry VIII’s establishment of himself as the ruler of church as well as state in England, his sacking of the monasteries, the subjugation of the ecclesiastical courts, and his establishment of a church hierarchy subject to himself. For centuries thereafter, Jews and Catholics in particular were forced to operate under severe legal penalties. Indeed, for hundreds of years it was illegal for Catholics to attend Mass and unapproved Catholic priests (pretty much all of them) were executed. It was not until well into the nineteenth century that legal disabilities were removed from Catholics; social disabilities remain to this day and, of course, the Anglican Church remains an arm of the English state.
In the colonies, meanwhile, establishments often were very weak or broad (Pennsylvania, for example, required only that those standing for office declare belief in a supreme deity). Religious and secular authorities often were in conflict, which tended to limit the powers of both and maintained separate institutions and authorities such that persons and communities could find room for self-government. The result was a public life imbued with religious norms but dominated by no one sect or political faction. Unfortunately, we currently live under an administration that is bound and determined to eliminate the public role of churches in the United States and even to force religious charitable organizations to bow to its political demands, for example forcing them to provide contraceptive and even abortion services through their health insurance plans (also required by the federal government). The goal is to eliminate the traditional, special role of religious institutions in public life, undermining that separation of public jurisdictions declared in Magna Carta and maintained for centuries in the American colonies and United States.
During the early modern Tudor reigns the other great accomplishment of Magna Carta—the right to due process—came close to being extinguished. Magna Carta had declared that the king would prosecute subjects only according to “the law of the land,” meaning in accordance with set, traditional procedures or duly enacted statutes. Sadly, the promise was ignored more than kept. Constitutional development in England was a matter of repeated conflict, and Magna Carta, thanks to the great legal thinker Edward Coke, served as an important precedent in arguments for recognition of the limits of royal power. But it was a long, difficult battle. “Prerogative courts” operating outside both common and canon law were established on the theory of absolute sovereign power residing in the monarch. In these courts, which increasingly took over particular cases and entire areas of law from other courts, individual procedural rights were limited, if not entirely eliminated, and the king’s will ruled.
Due process in England was a long time coming and was established in large measure by later statutes (such as that on habeas corpus, forbidding imprisonment without formal charge and trial), civil war, and the Glorious Revolution of 1688. These developments were crucial in the cause of ordered liberty but remain primarily political rather than constitutional in nature. Parliament could undo these developments, either directly or through its various ministries (bureaucratic agencies). Sadly, this remains the case today, denying the essential constitutional protection of ordered liberty, namely the status of certain legal rights and duties as beyond the reach of normal politics. For constitutions protect ordered liberty most by simply requiring very high levels of support for any change in the governmental principles considered important enough to be included in the basic charter of government.
This is not to say that liberties in the United States are secure by any means—our courts and agencies in particular seem intent on prioritizing their own policy preferences over the rule of law. But tyranny must go through more steps in the United States than in the United Kingdom in order to be successful. For example, The London Telegraph has reported with breathless approval that prosecutors in the United Kingdom now will be told to put a greater onus on rape suspects to “demonstrate how the complainant had consented ‘with full capacity and freedom to do so.’” (http://www.telegraph.co.uk/news/uknews/law-and-order/11375667/Men-must-prove-a-woman-said-Yes-under-tough-new-rape-rules.html)
That the crime of rape is heinous and worthy of severe punishment should be beyond the need for debate. However, rape being such a serious crime, it is incumbent on the authorities to make certain the accused is guilty before imposing penalties upon him. What is being praised in the United Kingdom is rejection of the very basis of law in a free society—the principle that the prosecution must prove all elements of a crime. This same perversion of justice also has made inroads in the United States. But, so far, only US colleges and universities have shown sufficient contempt for the rule of law to institute this reversal of the presumption of innocence. Thus, rape suspects here can only have their lives ruined by being thrown out of school and marked as pariahs without proof; they cannot actually be put in jail, where they may well be raped themselves, without actual proof. Both the United States and the United Kingdom are heading down the road to politically correct mob rule, undermining liberty and the rule of law and fomenting a backlash against police procedures that can only weaken real protections against and punishments for the horrible crime of rape. But the process probably will take somewhat longer in the United States because the principle of due process of law is more deeply embedded in our culture.
Magna Carta remains highly relevant to politics and liberty in the United States today. Sadly, it is less relevant in the United Kingdom, and less relevant here than it ought to be. But those who continue to value the constitutional tradition on which our nation was founded have a duty to understand and fight for the principles laid down in that Great Charter.