Americans accord Magna Carta semireligious veneration, even greater reverence than do the British, citing it constantly in political speeches, judicial opinions, and newspaper opinion pieces as a symbol of the “rule of law” in the United States. If most of us know even a little of the Charter’s history, we know that somehow it is the source of our liberties that we enjoy today. For America’s founding fathers, Magna Carta symbolized the “rule of law,” the precept that a government is bound by the law in dealing with its people. This view was set forth first in the Declaration of Independence, then in the state constitutions of the former thirteen colonies, and in the Fifth and Fourteenth Amendments to the federal Constitution.
The origin of Magna Carta lies in the determination of rebel English barons in 1215 to impose limits on the power of King John, whom they viewed as cruel, greedy, and tyrannical as well as incompetent on the battlefield. His slights and financial extortions against individual barons caused many to feel that he had wrongfully withheld from them lands, castles, and privileges that were rightly theirs. The original June 1215 Charter consisted of 63 chapters in no particular order, drafted hastily to redress the complaints of the barons. Its aim was not to set forth constitutional or legal principles, but to supply specific solutions to specific issues. Yet a few chapters form the basis for precepts that still shape American law and government. Chief among them is Chapter 39, “No free man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgment of his peers or by the law of the land.”
Chapter 61 authorized a committee of 25 barons to enforce the Charter’s terms by renewing warfare against John, should he fail to remedy their grievances within 40 days. King John only grudgingly agreed to Magna Carta, regarding the enforcement clause as an unacceptable limit to his authority as a crowned and anointed monarch. Such a restraint on royal power was unheard of; indeed, it was the first recognition of the right of resistance to a ruler in the written public law of any country. John, however, hardly negotiated in good faith, and he had no intention of putting up with Magna Carta’s limits on his power. It was in force for less than three months. The rebel barons rightly suspected King John of duplicity, and both sides had been preparing for war throughout the summer of 1215, and began fighting soon after Magna Carta’s cancellation. By the time of John’s death in October 1216, the rebel and royalist armies had fought to a stalemate. Forces faithful to the late king continued thefighting to defend the right of his heir, nine-year-old Henry III, to the English crown.
A quick re-issue of Magna Carta showed the willingness of those governing in the boy-king’s name to compromise with rebels. To placate them, they issued another version of Magna Carta in young Henry’s name in 1217, and a final definitive version followed in 1225. This Charter was enrolled as the first of England’s statutes during Edward I’s reign at the end of the thirteenth century, and through periodic confirmations throughout the thirteenth and fourteenth centuries, it stood as a protector against royal tyranny. Over time, Magna Carta became a kind of “fundamental law.” A statute enacted in 1369 made clear that the Great Charter was the supreme law of the land, declaring, “If any Statute be made to the contrary, that shall be holden for none.”
Magna Carta and the American Colonies
The barons’ extortion of written promises from King John supplied a justification for the American colonists to take up arms against England in 1775. The lens through which the colonists visualized Magna Carta was its revival and reinterpretation by seventeenth-century opponents of the Stuart kings of England. For the English people resisting their despotic rule, Magna Carta became a symbol of fundamental law standing above enacted laws, a written contract between the governed and their governor. In North America, the settlers considered their colonies’ charters setting forth fundamental law for their governance to be similar solemn contracts with the English king. The first charter of Virginia in 1606 stated that the settlers “shall have and enjoy all liberties, franchises and immunities . . . as if they had been abiding and born within this our realm of England.” Almost identical language appears in the charters of the other thirteen colonies, and several also contained clauses borrowed directly from Chapter 39 of Magna Carta. American colonists took seriously their right to all the liberties of their cousins across the Atlantic, and English law books circulating in the thirteen colonies familiarized them with these rights. As early as 1687, a book published in Philadelphia provided a text of Magna Carta. As the colonists moved toward their break with Britain, they increasingly turned to the Great Charter to bolster complaints against arbitrary acts of colonial governors, judges, and lesser officials. Indicative of the feeling for the Charter in Massachusetts is the design that it selected for its seal when it rejected colonial status and formed itself into a commonwealth. The seal depicted a militiaman with a sword in one hand and a copy of Magna Carta in the other.
With the thirteen colonies claiming their Magna Carta rights, and the British crown defending its prerogatives, it would take on new life, shaping the law and politics of a new nation, the United States of America. Eighteenth-century Americans regarded their relationship with King George III as contractual, just as seventeenth-century English lawyers had imagined an implicit contract between King John and his barons or between the Stuart kings and themselves. Rebellion was justified when the monarch violated the contract’s terms, trampling on their liberties. The list of George III’s injustices in the Declaration of Independence of July 1776 echoes provisions of Magna Carta. It declared that the king’s contract with the Americans was broken because he aimed at “the establishment of an absolute tyranny over these states.”
After the colonists won their independence and drafted state constitutions, the founders, mindful of seventeenth-century doctrine, accorded those constitutions a lofty position above enacted laws. Their notion of Magna Carta as “fundamental law,” standing above both king and Parliament and unalterable by statute, convinced them to view the new states’ written constitutions in a similar manner. Later in 1787, the framers drafted a federal Constitution as a new fundamental law for the new nation. As the states considered ratifying the federal Constitution, Magna Carta was a central piece of discussions. Missing from the new constitution was a bill of rights, echoing chapter 39 of Magna Carta. Nine of the states had inserted such a guarantee of liberties into their constitutions. The absence of an enumeration of the peoples’ rights in the Constitution proved a powerful obstacle to its ratification, and in response, the first ten amendments to the document were adopted. Standing out among these amendments, ratified in 1791 as the Bill of Rights, is the Fifth Amendment. Its promise that no person shall be “deprived of life, liberty, or property without due process of law,” paraphrased Magna Carta’s 39th chapter. The phrase “due process of law” would prove to be remarkably elastic in expanding the rights of American citizens. Amendment 6 spells out precisely the meaning of “lawful judgment of peers” and “law of the land” in chapter 39, promising accused persons the right to a “speedy and public trial, by an impartial jury,” and the right “to be informed of the nature and cause of the accusation,” the right “to be confronted with the witnesses against him,” to call “witnesses in his favor,” and to have “counsel for his defense.”
Magna Carta and American Law
The United States Supreme Court first cited Magna Carta in an 1819 opinion, and its citations since then number over one hundred. In that decision, Justice Joseph Story, the new nation’s foremost legal scholar, wrote that Magna Carta represented “the good sense of mankind” that individuals must be free from “from the arbitrary exercise of the powers of government.” Story later wrote in one of his volumes of legal commentaries that the Fifth Amendment’s guarantee of due process of law is “but an enlargement of the language of the Magna Carta.”
Eventually, Magna Carta’s promise of the rule of law would be broadened to include the concept of equality under the law. The Great Charter differed from earlier medieval charters of liberties by not restricting its remedies to the great men of the kingdom; the first chapter declared that King John made his grant “to all free men of our kingdom.” Several chapters referred to “free man” or “free men,” words that in 1215, defined not only barons and knights, but also smaller landholders who held their land “freely” without owing servile services to their lord. Free men had privileges denied to the serfs, or unfree peasants, who constituted over half England’s population in the early thirteenth century. Yet some provisions of the Charter applied to every person in the realm, free and nonfree, most notably chapter 40’s provision that justice would be sold to “no one.” In the mid-fourteenth century, a statute expanded the number of persons protected by chapter 39’s guarantees, replacing the phrase “no free man” with more inclusive language, “no man, of whatever estate or condition he may be.”
In the early American republic, African slaves and free blacks constituted a large population denied equality under the law. Abolitionists turned to Magna Carta in their advocacy efforts, but their pamphlets and speeches were met with little success. One of their few victories came with the Amistad case, which, in 1841, centered on Africans who had seized control of a Spanish vessel carrying them to slavery in Cuba. Abolitionists supported the Africans’ suit for their freedom, and when the case reached the Supreme Court, John Quincy Adams defended the slaves. He argued that the Declaration of Independence, “that every man has a right to life and liberty, an inalienable right,” should decide the case, “I ask nothing more in behalf of these unfortunate men than this Declaration.” The Supreme Court decided that the Africans were entitled to their freedom under Spanish law, but later, in the 1857 Dred Scott decision, it denied American-born slaves any access to the federal courts. The Court ruled that African Americans, “whose ancestors were imported into this country and sold as slaves,” were not American citizens and enjoyed none of the rights of citizens. Only after the Civil War would Magna Carta’s principle of equality under the law be extended to former slaves.
Three amendments to the Constitution were adopted in the Reconstruction era to ensure the former slaves their basic liberties. The Thirteenth Amendment, ratified by the states in 1865, barred slavery in the United States. Two additional amendments granted full citizenship to the newly freed slaves. The Fourteenth Amendment, adopted in 1868, declared them to be citizens of the United States and of the state in which they resided, and it forbade state governments from depriving “any person of life, liberty, or property without due process of law; nor deny to any person . . . the equal protection of the laws.” The Fifteenth Amendment in 1870 protected the new black citizens’ right to vote, providing that no citizen should be disfranchised “on account of race, color, or previous condition of servitude.”
Despite these post–Civil War constitutional amendments, the United States failed to live up to its promises of equality under the law for its black citizens. This failure marks perhaps the greatest stain on Americans’ fidelity to Magna Carta’ principles. By 1876, northerners had lost interest in the former slaves’ plight; and they no longer had the will to confront the South’s fierce resistance to full citizenship for the freedmen. The federal government stood aside when the southern states enacted “Jim Crow laws” to disfranchise and segregate their black inhabitants. Late nineteenth-century Supreme Court decisions sanctioned state statutes decreeing official racial discrimination. With the rise of big business in the “gilded age,” the Supreme Court would construe the Fourteenth Amendment’s “due process clause” in ways that diverted it from its ostensible aim of defending black citizens’ liberties. Ruling in 1886 that the term “persons” extended to “legal persons” or corporations as well as to “natural persons,” it turned the amendment into a protector of private property and corporate interests. It repeatedly struck down state governments’ regulations aimed at improving working conditions or protecting consumers.
Twentieth-Century Return to Magna Carta
Only in the 1930s, with the calamitous economic crisis of the Great Depression, did Supreme Court justices turn aside from economic dogmas that had reshaped the Fourteenth Amendment into a barrier to government regulation of business. During the New Deal era, in 1935, the Court moved into a new building with an inscription over its main entrance reading, “Equal Justice Under Law.” Its monumental bronze doors featured panels depicting great moments in the history of law; one of them pictures King John sealing Magna Carta. President Franklin D. Roosevelt saw the people’s right to life, liberty, and the pursuit of happiness endangered by the poverty, unemployment, and appalling economic inequality brought on by the Depression. His New Deal sought to protect rights of working people by curbing the concentration of economic power in giant corporations through governmental intervention and regulation. The Supreme Court found much of Roosevelt’s innovative New Deal economic legislation to be unconstitutional, but eventually public opinion and political pressures caused the justices to modify their antiregulatory stance. In the pivotal 1937 Jones and Laughlin Steel Corporation case, for example, the Court narrowly upheld the constitutionality of the Wagner Act. Known as the “Magna Carta of Labor,” this law protected workers’ rights to organize unions and to bargain collectively for wages.
By the mid-twentieth century, the due process clause of the Fourteenth Amendment was not so much an instrument for preserving property rights as once more a protector of personal liberties. A 1963 Supreme Court decision recognized that the Fourteenth Amendment allowed new applications of the writ of habeas corpus, previously seen only as a remedy for detention without charges or trial. It became clear that habeas corpus had broadened into a remedy for persons convicted and imprisoned by state courts who had complaints that their constitutional rights to “due process” or “equal protection of the laws” had been violated. A number of rulings by the Supreme Court shored up defendants’ rights, allowing them court-appointed counsel and racially representative juries, reinforcing their right to remain silent under police interrogation (the Miranda Rule), and imposing restrictions to prevent police from unlawfully obtaining evidence and coercing confessions.
The 1960s saw a revival of the Fourteenth Amendment’s original purpose of protecting African Americans’ rights against racially discriminatory state laws. This resulted in a vast extension of the federal judiciary’s oversight of “due process of law” and “equal protection of the laws,” expanding Magna Carta’s protection of personal liberties far beyond the imagination of the barons at Runnymede or America’s framers. Two high points were the Civil Rights Act of 1964, which opened public accommodations to all persons regardless of race or color, and the 1965 Voting Rights Act, which abolished literacy tests and similar subterfuges used by southern voter registrars to prevent blacks from registering to vote.
Magna Carta Today
After the terrorist attacks of September 11, 2001, aroused widespread fury and frenzy, Magna Carta’s great message again needed restating. Fear of further terrorist attacks stampeded the federal government into declaring “a war on terror,” and civil liberties were ignored. Suspicious persons were detained indefinitely without charges, denied their right of habeas corpus, and even denied basic human rights while incarcerated. Yet federal judges stood ready to challenge these extra-legal measures, and from 2004 to 2008, they invalidated presidential executive orders and congressional enactments. In 2008, a Supreme Court decision, Boumediene v. Bush, affirmed that the right to know the reason for one’s confinement is fundamental to the rule of law even in wartime. The justices made clear the connection between Magna Carta and the right of habeas corpus, stating that the history of English law shows how “gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled.”
Magna Carta on the eve of its 800th anniversary remains an enduring symbol of freedom. Emblematic of its importance for Americans is the “Records of Rights” exhibit at the National Archives in Washington, D.C. Its centerpiece is the only copy of Magna Carta permanently held in this country, a 1297 reissue, considered the first of England’s statutes. The exhibit presents it as the precursor to the freedoms promised in other documents on display: the Declaration of Independence, the United States Constitution, and the Bill of Rights.