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Magna Carta: Is it worth the bother?

Eight hundred years ago, royal scribes were busy making exemplifications of Magna Carta—which rebellious barons had forced King John to agree to on June 15, 1215—for distribution across England. King John had abused his power in many cruel ways against virtually every segment of English society, and the barons had the support of a wide range of what we now call civil society. On June 15, 2015, thousands of people gathered at Runnymede outside London to commemorate the 800th anniversary of Magna Carta and re-dedicate the American Bar Association's Magna Carta memorial there. U.S. Attorney General Loretta Lynch, U.S. 7th Circuit Chief Judge Diane Wood, the Queen and her husband Prince Phillip, Prince William, Princess Anne and her husband, the Master of the Rolls, the Archbishop of Canterbury, the Rector of Temple Church, Knights Templar, and many other luminaries were present. The London Philharmonic Orchestra performed and the Temple Church Choir sang. The atmosphere was exuberant and the historical and contemporaneous relevance of Magna Carta were celebrated. Magna Carta has become an iconic symbol of freedom, justice, and rule of law.

At the same time, several U.S. scholars have questioned whether Magna Carta is worth celebrating—now or ever. Criticizing Magna Carta is not new: Oliver Cromwell famously referred to it as “Magna Farta”. But Cromwell’s criticism was based on his objection to his actions being constrained; modern critics presumably do not share that motivation. Rather, they argue among other things that the 1215 Magna Carta contains an anti-Semitic provision, it implicitly recognizes the validity of trial by battle, and its various provisions applied to different segments of the English population, with one of the most famous directed at “free men,” who comprised a minority of the citizenry. Moreover, its connection to many principles commonly credited to it, such as trial by jury, habeas corpus, and freedom of religion, are tenuous at best. In addition, the 1215 Magna Carta failed as a peace treaty, having been annulled at King John’s request by Pope Innocent III on August 24, 1215, ten weeks after the barons had forced the King to agree to it. So much for original intent!

Other than the point that persons who cite or quote Magna Carta should understand its messy history and textual limitations, the critics’ arguments are unpersuasive. First, the fundamental principle on which Magna Carta is based is that all persons are subject to the law and that this can be established by a written instrument. That principle, which was radical in its time, has remained unblemished for eight hundred years. The U.S. Constitution and indeed the entire U.S. form of government are based on that principle, as are the political systems of many, many other countries. The fact that the British do not have a written constitution does not diminish the importance of Magna Carta in this respect.

Second, some specific portions of Magna Carta have continuously remained valid since 1216 and robust since its initial sealing to the present day. These include most notably chapters 39 and 40 of the 1215 Magna Carta (chapter 29 of the 1225, 1297, and 1300 Magna Cartas). These read:

Chapter 39: No free man is to be arrested, or dispossessed, or disseised, or outlawed, or exiled, or in any other way ruined, 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.

Chapter 40: To no one will we sell, to no one will we deny or delay, right or justice.

The concepts embodied in these provisions are central to good governance and rule of law. Indeed, the U.S. Supreme Court cited chapter 40 approvingly on April 29, 2015, in Williams-Yulee v. Florida Bar, upholding Florida’s prohibition against a judge soliciting funds for her own re-election. Even more recently, on June 22, 2015, the Court cited chapter 28 of the 1215 Magna Carta, which protects agricultural crops from uncompensated takings, in support of its interpretation of the Fifth Amendment to the U.S. Constitution.

Third, Magna Carta has not only been effective jurisprudentially but has also proven to be an important inspiration and symbol of liberty and freedom over the past eight centuries. Beginning in the thirteenth century, litigants, lawyers, and jurists cited it in court cases, and it was influential in the seventeenth century and thereafter.

The seventeenth century saw several important developments regarding Magna Carta. Sir Edward Coke, John Selden, and others turned it into a symbol of liberty for Englishmen through rulings, writings, and speeches. William Penn successfully used it in his trial in England for blasphemy, and later took it with him to Pennsylvania. And indeed, it accompanied all English settlers to the New World as part of their rights as English men and women.

Magna Carta rose to new prominence and influence in the Americas in the eighteenth century. John Adams and Benjamin Franklin invoked Magna Carta in support of the proposition that there must be no taxation without representation. It appears on the 1775 seal of Massachusetts and the currency of Maryland, also issued in 1775. It is mentioned in two of the Federalist Papers. Magna Carta's fundamental principle of constitutionalism was the basis for the U.S. constitution, as already mentioned. And Magna Carta influenced several provisions in the Bill of Rights, including the Fifth and Sixth Amendments. In fact, Magna Carta's greatest development as an icon of liberty, freedom, rule of law, and due process occurred in America during this period.

Subsequent invocations of Magna Carta not only supported important causes but also added to its power and force. A few examples suffice: Mahatma Gandhi invoked Magna Carta in 1903 in support of his efforts to achieve equality in South Africa; Winston Churchill described it as one of the “title deeds of freedom" in his 1946 speech unveiling the term “Iron Curtain”; Eleanor Roosevelt described the Universal Declaration of Human Rights as the “Magna Carta of human rights” in 1948; and Nelson Mandela invoked Magna Carta in his pre-sentencing speech in 1964.

The struggle against corruption and abuse of power and for freedom, rule of law, and justice is never-ending. As Edmund Burke said, "The price of liberty is eternal vigilance." Magna Carta remains one of the world's most powerful symbols to aid in that struggle.

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