Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Magna Carta at 800
By David Koyzis
March 30, 2015
It doesn’t read like a constitutional document. It contains odd provisions like, “All fish-weirs [fish traps] shall henceforth be entirely removed from the Thames and the Medway and throughout all England except along the sea-coasts.” It wasn’t formulated by a meeting of political leaders intending to establish constitutional government but was drafted in the wake of battle. Nevertheless, Magna Carta, whose eight-hundredth anniversary we observe this year, has come to be considered a seminal document in the constitutional history of the English-speaking peoples, including Americans.
Although Magna Carta is the constitutional ancestor of both American and Westminster parliamentary systems, Americans seem to make more of it than do their Canadian and Australian cousins. According to one source, “In over one hundred decisions, the United States Supreme Court has traced our dependence on the Magna Carta for our understanding of due process of law, trial by jury of one’s peers, the importance of a speedy and unbiased trial, and protection against excessive bail or fines or cruel and unusual punishment.” Furthermore, the frequency of these citations has grown with time, indicating that the Great Charter is more than just another antiquated document but continues to have relevance to constitutional governance in the twenty-first century. Apart from it there would not have been a Declaration of Independence, a Constitution, or a Bill of Rights.
The Center for Public Justice owes much to this constitutional history, and the specific contours of its own vision could not have easily arisen apart from it. For example, the Center’s Guidelines for Government and Citizenship tell us that “For government to be ‘under law’ . . . means that it is not authorized to do whatever it wishes, but instead may exercise its power only within the boundaries of the political community’s constitution, laws, and court rulings.” This belief, of course, is not peculiar to the Center’s vision but is widely acknowledged throughout the United States and elsewhere, thanks in large measure to Magna Carta.
Early Significance of Magna Carta
Fish-weirs aside, the sections of Magna Carta that receive the most attention are numbers 1 and 39:
We have also granted to all freemen of our kingdom, for us and our heirs forever, all the liberties herein under written, to be had and held by them and their heirs of us and our heirs.
No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.
This is about as close as anything in the “Great Charter” gets to the inspiring language of the Declaration of Independence or of the Preamble to the United States Constitution. It pays no lip service to human rights or even to the more modest rights of Englishmen so extolled by Edmund Burke. No flashy abstractions – just a laundry list of concessions the barons sought to wrest from a reluctant king but had no intention of granting to their own subordinates.
Even at the time of Magna Carta’s creation, some observers recognized its significance. A contemporary Scottish monk wrote of events south of the border: “A new state of things begun in England, such a strange affair as had never been heard; for the body wishes to rule the head, and the people desire to be masters over the king.” If this is not quite democracy as we know it, Magna Carta nevertheless began a centuries-long process that would see progressively realized the principle that the king must rule under the laws of the land and that his subjects possess immunities which he cannot violate. This reflects the earlier biblical principles of rulership found in Deuteronomy 17, as they applied to a future Israelite king:
When he has taken the throne of his kingdom, he shall have a copy of this law written for him in the presence of the levitical priests. It shall remain with him and he shall read in it all the days of his life, so that he may learn to fear the Lord his God, diligently observing all the words of this law and these statutes, neither exalting himself above other members of the community nor turning aside from the commandment, either to the right or to the left, so that he and his descendants may reign long over his kingdom in Israel. (18-20 NRSV).
In other words, Scripture has no patience with pretensions to monarchical absolutism, and Magna Carta owes much to this biblical position.
The Evolution of Constitutional Liberties
Subsequent centuries witnessed other noteworthy landmarks in the evolution of constitutional liberties, both in England and in her overseas territories. In 1628, during a turbulent century when king and parliament were at each other’s throats, the English Parliament submitted a Petition of Right, requesting, among other things, that the king’s subjects “not be compelled to contribute to any tax, tallage, aid, or other like charge not set by common consent in parliament.” This established the convention that only the legislature could initiate financial bills, something that would make its way into American, Canadian, and Australian constitutional documents. The Petition explicitly cited the protections found in Magna Carta’s section 39. It demanded that the king abide by “due process of law” during a time when philosopher Thomas Hobbes was arguing that, as the origin of law, the Sovereign is above it and not bound by it. In his response to the Petition, King Charles I offered that “I have granted no new, but only confirmed the ancient, liberties of my subjects.” This is significant in that the growth of constitutional government was in some sense revolutionary, yet justified in surprisingly conservative terms.
By 1689, after the so-called Glorious Revolution of the previous year had removed James II from the throne and installed his daughter and son-in-law in his place, the English Bill of Rights reaffirmed the principles of the Great Charter in language that begins to sound familiar to Americans. Subjects have the right to petition the king without fear of prosecution. No standing army in peace time without parliamentary approval. Freedom of speech – not yet for everyone, to be sure, but for members of parliament meeting in session. No excessive bail. No cruel and unusual punishments. Frequent meetings of parliament for purposes of “amending, strengthening, and preserving of the laws.” There is even a quirky provision, anticipating the Second Amendment to the US Constitution, that “the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.”
Nearly a century later, as tensions began heating up between Britain’s Parliament and her overseas colonies, Americans cited these same guarantees against what they believed to be illegal violations perpetrated by London. In other words, a revolution was begun for professedly conservative reasons, namely, the breach of ancient rights and liberties. There was certainly something to this argument. Representative government in the Americas had begun as early as 1619 with the establishment of the House of Burgesses in Virginia, and other colonies would follow suit. By the mid-1770s, Americans were long accustomed to self-government, which continued throughout the revolutionary period and after the war ended in 1783. This suggests that the Novus Ordo Sæclorum (New Order of the Ages) inscribed on the reverse side of the dollar bill was nothing of the sort. Independence simply severed the connections between thirteen existing political communities and the British Crown. The federal system established a few years later built on longstanding historical precedents, including the English constitution itself as interpreted in Baron Montesquieu’s writings, which the American founders read deeply and took to heart.
Individuals and Communities within a Just Public Order
What Magna Carta and its successors could not do, however, was to stem the tide of an individualism which would come to be embodied in Thomas Jefferson’s Declaration of Independence and which envisioned political order as a product of a social contract among sovereign individuals. This has had two consequences. First, individualism identifies justice not with a divinely established norm for political life, but with satisfying the potentially shifting wills of citizens. Second, it makes it more difficult for governments to recognize that justice calls for protecting the rights of communities as well as of individuals. Because Magna Carta was a treaty between two quarrelling parties, it is not surprising that it could not readily recognize or anticipate a public legal community justly integrating the legitimate pluriformity of society in a non-individualist way.
If there is a lesson to be drawn from the continuing relevance of an eight-century-old charter, it is that constitutions in the broader sense are not always deliberately planned or even written in their entirety, but develop in sometimes unexpected fashion in response to issues of only temporary significance. From our vantage point, it is difficult to imagine that either the king or the barons were in the right in the context of a long gone and unlamented feudal order. Both sides were self-interested actors whose motivations may have been far removed from a concern for the common good or public justice. Nevertheless, through God’s common grace, we know from experience that good can come from actions performed out of the basest of motives. We have reason to hope, then, that we can continue to build upon this foundation a just public order respecting and protecting a diversity of offices and responsible agents, both individual and communal in character.
We needn’t go as far as the nineteenth-century Savoyard philosopher and diplomat Joseph de Maistre in asserting that “every written law is only a necessary evil” to recognize with him that “the fundamentals of political constitutions exist before all written laws.” No amount of constitutional engineering will effect the rule of law where the rule of law is not already valued by the populace at large. Granting or adopting a written constitution will not by itself lead to constitutional government.
The Center’s Guidelines recognize that “In some countries, [constitutional] principles have become well established through longstanding traditions without a formal, written constitution.” Magna Carta played a pivotal role in the development of such key traditions as respect for the rule of law which must undergird a written constitution if it is to function at all, much less justly. The Center sees its role as educating citizens concerning their own responsibilities under the law as they work to build and maintain a just political order that recognizes and protects the diversity of offices and communities under its jurisdiction. We can best celebrate Magna Carta’s anniversary by continuing this work in the hope that God will see fit to use our efforts to advance his kingdom.
Questions for Reflection:
- Did the American founders create a new constitution, or did they adapt a much older constitution to the changed political circumstances following the war for independence?
- Why has constitutional government been more difficult to achieve in some countries than in others? To what degree is the rise of constitutional government dependent on the prevalence of a biblical worldview?
- What is the relationship between constitutional government and democracy? Are they necessarily dependent on each other?
—David T. Koyzis is the author of Political Visions and Illusions and We Answer to Another: Authority, Office, and the Image of God. He is an American citizen teaching politics at Redeemer University College in Canada.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”