What’s so magna about the Magna Carta?

Letter and spirit in constitutions

Most countries of the English-speaking world base their legal systems on the common law, that hoary complex of judicial precedents and practices which developed over many centuries in England. And nothing in the common law is hoarier or more basic than the Magna Carta—Great Charter—the agreement extorted from King John by his nobles in 1215 at Runnymede, a meadow on the River Thames a half-day’s horseback ride west of London.

John needed money to carry on an unpopular war in France, and the earls and barons were reluctant to give him more than they’d already forked over. They weren’t the only ones complaining. The peasants from whom the nobles extracted the rents and taxes from which the nobles’ payments to the king were taken were on the verge of revolt. Some of the nobles were in a rebellious mood themselves, which was why John agreed to hear their complaints. 

The agreement that resulted had dozens of clauses. Most were specific to that time and place. But clause 39 had lasting significance. "No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land," John promised on behalf of himself and his royal successors.

He wasn't serious. As soon as the rebellious barons rode away, he found a pretext for disavowing the pact. The pope in Rome seconded the disavowal, judging the agreement a threat to authority of all kinds.

Yet the agreement was not forgotten. Centuries later, amid the English Civil War, the principle that even the king was subject to law was resurrected by the advocates of Parliamentary supremacy. When the Parliamentarians prevailed, the Magna Carta was cited as a prophecy of their triumph.

American rebels against King George adopted the Magna Carta as their own. This was a bit awkward, since they were really rebelling against Parliament. But Thomas Jefferson finessed the issue by directing his complaints in the Declaration of Independence against George. The Continental Congress bought the switch, and the American Revolution went forward to victory.

Whereupon the Americans wrote a great charter of their own, the Constitution of 1787, which missed the point of the power of the original Magna Carta. That document was the creation of an era that was largely pre-literate. Movable type had not been invented and very few people could read a written document, especially one written in Latin. Of necessity, the English constitution that developed out of the Magna Carta was an unwritten constitution. It was no less real for being unwritten, but it emphasized enduring principles rather than lawyerly detail. And it had the authority of age.

The framers of America's 1787 Constitution had no such advantages. Their constituents were literate. The framers were producing a document de novo. They could expect their handiwork to be scrutinized word by word.

They tried to wrap a veil of mystery around their proceedings. The delegates to the Constitutional Convention were sworn to secrecy. They were told not to take notes on the debates. The idea was that at the end of the convention the delegates would hand down their Constitution much as Moses handed down the Ten Commandments on his descent from Mount Sinai.

Things didn't work out that way. Some of the delegates, upset at the centralizing trend of the convention, walked out and carried tales of disagreement, which infused the bitter contest for ratification. The ratifiers won but not before the Constitution had been stripped of any resemblance to holy writ. 

In its favor, the Constitution was—and is—admirably brief, more a sketch of a federal government than a blueprint. This brevity required subsequent generations to fill in the blanks. The Constitution says nothing about how Congress should conduct its daily business. Senators and representatives had to organize their houses themselves. The Constitution says nothing about the institutions that dominate our political culture: our political parties. We made those up on our own. In one of its rare attempts at specificity—the election of presidents—the Constitution had to be rewritten within scarcely a decade. The Constitution was vague to the point of opacity on what the Supreme Court was supreme over: the other branches of the government or merely the lower courts? Most maddeningly—and dangerously—the Constitution failed to say whether states could leave the Union. 

We eventually settled these issues, through trial and error and habit and precedent. In a very real sense, we have an unwritten constitution not unlike the British constitution.

Except that we have a written constitution as well. Having both gives us benefits of both. A written constitution, especially if succinct, allows easy access. Want to know what the Constitution says? Pull out your pocket edition and see. An unwritten constitution permits flexibility, being by nature a perpetual work in progress.

Having a hybrid constitution comes with costs. People who don't like what the written Constitution says appeal to the unwritten one, and vice versa. Progressive advocates of gun control cite precedent and practice to dilute the straightforward wording of the final phrase of the Second Amendment. Conservative originalists would like to turn back the clock on all manner of topics to what a literal reading of the Constitution circa 1787 said.

The costs of the conflict between our two constitutions have ranged from quotidian annoyance to mass mayhem. The latter—the Civil War—was made more likely by the contradictory plausibilities of the arguments of the seceders and the Unionists. The seceders, looking to the written Constitution and finding no ban on secession, concluded that no such ban existed. The Unionists, citing the unwritten spirit that had created the Union in the first place, declared secession impossible and illegal. The unwritten constitution prevailed after four years of war.

The difficulties of our dueling constitutions vex us still. The invokers of the unwritten constitution discovered in the 1970s a right of privacy that included abortion. Fifty years later the literalists, suddenly a majority on the Supreme Court, revoked that right. 

Both sides agree on the importance of clause 39 of the Magna Carta, preserved for us in the due process clauses of the Fifth and Fourteenth Amendments. Of course they disagree on what due process entails, despite eight centuries of argument on the subject.