The True Myth of Magna Carta

Today, Britain, America, and other Anglosphere countries celebrate the 800th Anniversary of the sealing of Magna Carta. In that meadow, tranquil to today (at least when Her Majesty the Queen isn’t there) occurred a tumult so momentous that its echoes still reverberate today. Others have written about those echoes in America. But it shouldn’t just be Anglosphere nations celebrating today — Magna Carta’s idea of constitutional government can be seen in Hungary (just a few years later), Denmark, Aragon (the Privileges of the Union under King Alfonso III), Scotland, the low countries, and even Poland.

 

But even with that spread of the principles that royal powers could be restricted by law, Magna Carta itself fell into desuetude in England. The Tudors were able to assert royal power in a way that the barons of 1215 and the proto-Parliamentarians of fifty years later might have found unsettling. The Statute of Proclamations, for instance, attacked the principle of the rule of law established under Magna Carta by allowing the executive the power to rewrite law – something certain executives are still trying today.

 

It is thanks to Sir Edward Coke and other Stuart-era jurists that we owe the resuscitation of Magna Carta. In his Institutes of the Laws of England, Coke not only found “many fruitfull branches of law” that sprang from Magna Carta but also traces of an “ancient constitution,” the birthright of all Englishmen since the Saxon era, that foreign monarchs like the Plantagenets had temporarily usurped. In these arguments we can find the beginnings, later mixed with natural rights theory via John Locke, of John Adams’ contention during the Revolution:  "Let it be known, that British liberties are not the grants of princes or parliaments, but original rights, conditions of original contracts, coequal with prerogative, and coeval with government."

 

So did Magna Carta reassert an “ancient constitution,” as Coke claimed? The answer, as J. C. Holt said plainly, is no. There are no signs that Magna Carta was signed in the knowledge of the sort of ancient institutions that Tacitus wrote about in the Germania, or even of the Witenagemot of Anglo-Saxon England. It simply was a concession of royal power, made under duress. Indeed, the extent of royal power can be seen in the very first clause, where the king grants something to God, rather than the other way round.

 

Hamilton got correct this interpretation of the Charter in Federalist 84 (even if he used it to argue against the need for a Bill of Rights). But does this matter? Again, the answer is no. Thanks to Coke and such early American luminaries as William Penn, the tradition of Magna Carta was inherent in American jurisprudence. From the Masschusetts Bodie of Liberties in 1641 to the Warren Court in 1967 we see clear evidence of Magna Carta’s clauses securing American rights.

 

It is just as necessary today. In administrative law we see clear breaches of not just the rule of law as mentioned above, but in disregard for Magna Carta concepts such as protection from the delay of justice. It has become a commonplace that landowners who see their rights abused by the EPA and other bodies will be bankrupt, dead, or both by the time they actually get their day in an Article III court. Just as the king gave a promise not to abuse his powers 800 years ago, it is time for a responsible president to declare his own Magna Carta in relation to the way his commissioners administer justice. A Magna Carta of process is possible by executive order. It should perhaps be the first act of the next president.