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Roots of Constitutional Government: Magna Carta at 800

King John’s acquiescence to the barons’ demands on the plains of Runnymede in 1215 was but a first, halting step on the road to the rule of law.  Despite frequent challenges, its principles endured, inspired, and were adapted over 800 years to undergird modern constitutional government.

This is the 800th anniversary of Magna Carta. The story of Magna Carta is the story of how a document assented to by King John in the political turmoil of 1215 became iconic. The myth is that Magna Carta established that government is subject to the rule of law and that the rule of law protects individual liberties against excesses of government. It certainly did not mean exactly that in 1215, at least not in the sense that we understand the concept 800 years later. The idea, the argument, as J.C. Holt has framed it,1 evolved over time.

The Road to Runnymede

June 15, 1215.2 Runnymede. King John was not having a good day. In fact, he was not having a very good reign.3 He began his reign as the monarch of the vast Angevin empire, ranging from the Scottish border to the Pyrenees. Inept management of the wars on the continent (John earned the nickname “Softsword” because of his lack of military prowess), including the loss of Normandy to Phillip of France in 1204, placed substantial financial burdens on John that he shifted to the barons. While overreaching by Henry II and Richard, John’s Angevin predecessors, was nothing new, the extent to which John violated those traditional rights in extorting payment from his barons was.

The barons rebelled against John’s abuses of power,4 forcing him to assent to Magna Carta in June of 1215, but John had no intent of honoring his commitment,5 and he didn’t. Pope Innocent III annulled Magna Carta within weeks after John gave his assent to it. Intended to promote peace, but instead provoking war, Magna Carta was initially a failure,6 but notwithstanding its initial failure, Magna Carta was reaffirmed by Henry III when he reissued it in 1216, 1217, and again in 1225. There were minor changes in the 1297 version, but Henry III’s issues of Magna Carta became definitive and were simply ratified later, some 30 times, the last by Henry V in the early 15th century.7 Magna Carta’s importance diminished in the 15th and 16th centuries, but it became of pivotal importance in the attempts by both the courts and Parliament in the 17th century to subject the Stuart kings to the rule of law, and then by radical Levellers in England to constrain Parliament’s power, and later, by American revolutionaries to establish that their rights as free Englishmen could not be reduced by an overreaching Parliament.

The Document

There are 63 chapters in the 1215 Charter. It opens with a greeting by “John by God’s grace king of England, lord of Ireland, duke of Normandy and Aquitaine, count of Anjou, to his archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, reeves, officers and all bailiffs and subjects … .”

In chapter 1 of Magna Carta John granted to God the freedom of the Church and “the freedom of elections which is deemed to be the English Church’s very greatest want,” in perpetuity. The text also states that John “granted to all the free men of our kingdom, for ourselves and our heirs in perpetuity,” the liberties listed in the remainder of the document.8 In contrast to earlier charters of liberty, the remedies in Magna Carta were not restricted to the barons. The class of “free men” included smaller freeholders, about half of England’s population in 1215.9

The rest of the chapters proceed in no particular order. Most of the clauses in Magna Carta dealt with varied grievances the barons hoped to redress. Some of the grievances were local. Others dealt with administrative issues and courts and justice.10

Still others were concerned with something we more readily recognize—freedom. Chapters 39 and 40 are perhaps the best known chapters. Chapter 39 states that “No free man is to be arrested, or imprisoned, 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 states that “We will not sell, or deny, or delay right or justice to anyone.”11 This is due process, but not in the modern sense. At the time it was an understanding that the barons would be entitled to a hearing before a panel of their peers.12

The barons sought to secure their rights in the charter by checking John’s power through governance “by counsel,” which would have thwarted John’s preference for consulting with foreign royal or lowborn appointees by requiring him to consult with the barons. Chapter 61 provided for the creation of a 25-member council of barons intended to constrain John’s power and ensure that he would observe “the peace and liberties” granted to the barons. It also provided a mechanism for rectifying breaches of Magna Carta by John.

The barons were wary, because John had a history of breaking his promises and the barons expected that he would petition Pope Innocent III for a release from his obligations. Chapter 61 therefore concluded with John’s assurance that he would adhere to the charter and not seek a release from its terms. The road from Runnymede is the long story of Magna Carta as it rippled through the centuries, symbolizing the concept that certain fundamental rights and liberties are beyond the reach of a government constrained by law.

The Road from Runnymede13

The road from Runnymede is the long story of Magna Carta as it rippled through the centuries and became a broader symbol of the concept that certain fundamental rights and liberties are beyond the reach of government. Its history, as J.C. Holt has stated, “is the history not only of a document but [also] of an argument … [T]he history of the argument is a history of a continuous element of political thinking.”14 As Professor Howard has noted, Magna Carta’s story is one of the development of concepts that are at the core of Anglo-American jurisprudence, but it is a story of “the growth of an attitude that government is or ought to be, at its base, constitutional government.”15

Magna Carta, viewed as political theory, “sought to establish the rights of subjects against authority and maintained the principle that authority was subject to law.”16 Whether those rights have their source in the common law, as Sir Edward Coke thought in his battles with the Stuart kings, or are natural rights, as viewed later by Blackstone, the key is that Magna Carta, viewed as political theory, was intended to ensure the rights of English subjects against abuses of governmental authority.17 Viewed in those broad terms, the same issue was involved in the conflicts with King John, Charles I, and the colonial resistance to George III and Parliament.

Magna Carta was used in the 17th century by Sir Edward Coke as a common law check on the power of the Stuart kings and later, in the mid-17th century, more broadly by the radical Levellers as a basis for arguing that certain fundamental rights should be beyond the reach of government. While the Levellers viewed Magna Carta with some suspicion because of its connection to the so-called “Norman yoke,” they also saw it as an affirmation of their basic rights, not in the common law sense that Coke did, but, rather, in the more modern sense of preexisting rights that cannot be ceded to authority under any theory of government.18 The Leveller movement, defeated by Oliver Cromwell—twice—faded, but their philosophy resonated with American revolutionaries and became an important part of the argument to limit British encroachments on American rights.

The philosophical problem the American revolutionaries faced was that the rights seemingly protected by Magna Carta were subject to limitation by Parliament. Blackstone’s observation was that there are certain “absolute rights of individuals,” those which in the strictest and primary sense “would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it.”19

For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies; so that to maintain and regulate these is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and then such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated … .20

Blackstone recognized the importance of Magna Carta in protecting fundamental rights,21 but he also noted that Parliament was supreme, rejecting Locke’s theory that the people retained an inherent power by which the legislative power could be constrained as impractical:22

It must be owned that Mr. Locke, and other theoretical writers, have held, that “there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust imposed in them: for, when such trust is abused, it is thereby forfeited, and devolves to those who gave it.” But however just this conclusion may be in theory, we cannot practically adopt it, nor take any legal steps for carrying it into execution, under any dispensation of government at present actually existing.23

With parliamentary sovereignty, natural law theory has its limits. Individual liberties were protected through England’s mixed and balanced constitution,24 but if there was an imbalance that resulted in an infringement of those rights, there was no “constitution” to prevent the encroachment.25That was the rub in revolutionary thought. As Bernard Bailyn framed it:

How to qualify, undermine, or reinterpret this tenet of English political theory was the central intellectual problem that confronted the leaders of the American cause; and there is no more fascinating spectacle in the history of American political thought than the efforts that were made—starting in the struggle with England over the extent of Parliament’s power and continuing into the debates on the ratification of the Federal Constitution—to come to terms with this problem. It is a classic instance of the creative adjustment of ideas to reality.26

Colonial charters provided the assurances of Magna Carta. The concept of embedded rights in a written charter carries forward to the adoption of state constitutions following a pre-Declaration of Independence resolution by the 2nd Continental Congress. Twelve states adopted written constitutions before the constitutional convention in 1787. Six of them had bills of rights, but four others protected rights in the body of their constitutions.27 It was a natural development, given colonial history.28 While Magna Carta was not critical to the framing of the Constitution in 1787, the Bill of Rights is a “bridge between Magna Carta in England and the Charter’s legacy in America.”29

Magna Carta in Minnesota

Some of the most important constitutional provisions in Minnesota were based on the principles of Magna Carta.30 Article I, section 7, the due process clause, reads as follows:

No person shall be held to answer for a criminal offense without due process of law, and no person shall be put twice in jeopardy of punishment for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law. All persons before conviction shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great. The privilege of the writ of habeas corpus shall not be suspended unless the public safety requires it in case of rebellion or invasion.31

Article I, section 8 provides that “Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws.”32 The provisions are traceable to Magna Carta, of course.

Magna Carta has made occasional appearances in Minnesota Supreme Court decisions.33 Perhaps the primary case is Thiede v. Town of Scandia Valley.34 The Thiedes, a wife, husband and six minor children, were evicted from their homestead in the Town of Scandia Valley to Fawn Lake, pursuant to Minnesota’s poor law. As Justice Streissguth noted, the facts read like The Grapes of Wrath.

The case arose out of a dispute between two towns over the residence of the Thiedes for public assistance purposes. Because they had not lived in the Town of Scandia Valley for a year without receipt of public assistance, they were evicted from their homestead in that town to the Town of Fawn Lake, their place of “poor settlement.” The Thiedes sued for damages arising out of that eviction.

The issue was whether the town and its officials could be held liable for that removal. While there was general statutory language supporting their removal, the court held that the removal violated the Thiedes’ due process rights. Justice Streissguth’s opinion initially recognized the concept that certain rights are inalienable:

The entire social and political structure of America rests upon the cornerstone that all men have certain rights which are inherent and inalienable. Among these are the right to be protected in life, liberty, and the pursuit of happiness; the right to acquire, possess, and enjoy property; and the right to establish a home and family relations—all under equal and impartial laws which govern the whole community and each member thereof … The rights, privileges, and immunities of citizens exist notwithstanding there is no specific enumeration thereof in State Constitutions. ‘These instruments measure the powers of rulers, but they do not measure the rights of the governed.’ … ‘The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred.’ … Government would not be free if they were not so held.35

He recognized that article 1, section 7 of the Minnesota Constitution, the due process clause, protects the right to “life, liberty or property,” although it does not enumerate all the rights that are secured to its citizens. Article 1, section 16 of the Minnesota Constitution provides that “[t]he enumeration of rights in this constitution shall not be construed to deny or impair others retained by and inherent in the people.”

The notion that “Every man’s house is his castle,” Justice Streissguth wrote, “is more than an epigram. It is a terse statement, in language which everyone should understand, of a legal concept older even than Magna Carta.”36

In City of St. Paul v. Morris,37 the defendant used certain obscene language against police officers who had arrested his half-brother. The defendant was arrested for disorderly conduct in violation of a city ordinance. A majority of the supreme court affirmed the conviction. The defendant argued that the use of abusive language alone is insufficient to constitute a breach of the peace. The majority disagreed. Justice Loevinger wrote a strong dissent, noting that “[b]ehind this apparently simple issue lurk considerations of basic importance in the relationship of government to individual.”38

The liberty of the individual, which is rightfully one of the proudest possessions of the American people, is largely a freedom from arbitrary action by those possessed of the power of government. This is so important a matter to our people that the very structure of the government itself was formed to secure this end. The powers of government were divided among legislative, executive, and judicial branches to insure, so far as any device could do so, against abuse, arbitrary exertion, or usurpation of power.

This concept has roots deep in our legal history. In the Magna Charta signed by King John at Runnymede in 1215, it was promised that no freeman should be penalized unless ‘by the law of the land.’ It is now generally agreed that these words were intended to secure the individual from the arbitrary exercise of the powers of government. This specific guarantee of Magna Charta has been carried into our constitutional law in the prohibition against the deprivation of life, liberty, or property without ‘due process of law.’ These words have the same meaning as the phrase ‘by the law of the land’ used in Magna Charta in the thirteenth century. This basic requirement that government proceed by due process of law has been a part of the Bill of Rights of the Minnesota constitution since it was approved by the people in 1857.39

Justices Streissguth and Loevinger captured the bedrock meaning of Magna Carta in their opinions. We possess certain inherent and inalienable rights. The constitution ensures that those rights cannot be infringed absent due process of law.

Conclusion

Magna Carta was initially intended to constrain John’s abuses of power, but as to a select group of his subjects. The notion that power is subject to the rule of law evolved from its limited application in 1215 to a concept—a tailor-made argument—that power must be subject to limits.

The argument was made at historically critical political junctures in England and America, and, while the understanding of the history and philosophical justifications for the concept varied, the idea was adaptable. That is Magna Carta’s strength. That is the reason for its continuing relevance. That is the reason for the celebration of its history and 800th anniversary.40 

 

Michael Steenson is the Margaret H. and James E. Kelley Professor of Tort Law at William Mitchell College of Law, where he has taught since 1972. A graduate of the University of Wisconsin and the University of Iowa College of Law, he teaches in the areas of Torts, Constitutional Law, and American Legal History. 

 

Notes

1 J.C. Holt, Magna Carta 18 (Cambridge: Cambridge U. Press, 2d ed., 1992).

2 Magna Carta is generally dated to June 15, although the agreement was most likely reached a little later, on June 19. Ralph V. Turner, “The Making of Magna Carta: The Historical Background,” in Magna Carta and the Rule of Law 34 (Daniel Barstow Magraw, Andrea Martinez, and Roy E. Brownell II, eds. Chicago: American Bar Association, 2014).

3 See Ann Lyon, Constitutional History of the United Kingdom 51 (London: Cavendish Publishing Limited 2003).

4 A.E. Dick Howard, The Road from Runnymede, Magna Carta and Constitutionalism in America (Charlottesville: University Press of Virginia, 2d ed. 1968).

5 Turner, “The Making of Magna Carta: The Historical Background,” supra n.2.

6 Holt, Magna Carta 1,
supra n. 1.

7 Turner, op. cit., 35-42.

8 Daniel Barstow Magraw, Andrea Martinez, and Roy E. Brownell II, eds. Magna Carta and the Rule of Law, Appendix C at 389-90. (Chicago: American Bar Association, 2014) (emphasis added).

9 Turner, op. cit. 35

10 Id. at 35-42.

11 Magraw et al., eds., supra n. 8 at 394.

12 Id. at 40. In the 1225 version, chapter 29 merged chapters 39 and 40 of the 1215 version. It reads as follows:

No free man shall in future be arrested or imprisoned or disseised of his freehold, liberties or free customs, or outlawed or exiled or victimized in any other way, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land. To no one will we sell, to no one will we refuse or delay right or justice.

Magna Carta and the Rule of Law, Appendix I, at 429

13 This the title of Professor Howard’s excellent book on the impact of Magna Carta on American constitutionalism. See A.E. Dick Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America. (Charlottesville: Univ. Press of Virginia 1968).

14 Holt, Magna Carta 18, supra n. 1.

15 Id. at 1.

16 Id. at 18.

17 Id. at 18-19.

18 G.E. Aylmer, ed. The Levellers in the English Revolution. (London: Thames and Hudson 1975).

19 Sir William Blackstone, I Commentaries on the Laws of England 119. (Edward Christian ed. 1825).

20 Id. at 120 (emphasis in original).

21 Id. at 134.

22 Id. at 159.

23 Id. at 160 (emphasis in original).

24Bernard Bailyn, The Ideological Origins of the American Revolution 70. (Cambridge, Mass.: Belknap Press, enlarged ed. 1992).

25 Id. at 76.

26 Id. at 202.

27 Robert E. Riggs, “Substantive Due Process,” 1990 Wis. L. Rev. 941, 974 (1990).

28 Holt, op. cit., 204.

29 Howard, supra n. 13, at 239-40.

30 Id. at 211-15.

31 Minn. Const. Art. I, §7.

32 Id. Art. I, §8.

33 See, e.g., Carlton v. State, 816 N.W.2d 590, 601 (Minn. 2012), citing Boumediene v. Bush, 553 U.S. 723, 739–45 (2008) (describing the common-law origins of the writ of habeas corpus that trace back to the Magna Carta); State v. Hamm, 423 N.W.2d 379, 381 (Minn. 1988), superseded by constitutional amendment (right of trial by jury is as old as Magna Carta); O’Rourke v. Scrimshaw, 300 Minn. 158, 165, 220 N.W.2d 811, 816 (1974) (recognizing the “Magna Charta concepts embodied in the great words of art. 1, §8” of the Minnesota Constitution); Lommen v. Minneapolis Gaslight Co., 65 Minn. 196, 208, 68 N.W. 53, 5 4 (1896) (noting that Art. 1, §8 of the Minnesota Constitution, which provides that “‘every one ought to have justice freely and without purchase’… is as old as Magna Carta, and has a well-understood historical meaning.”)

34 217 Minn. 218, 14 N.W.2d 400 (1944).

35 Id. at 225, 14 N.W.2d at 405 (citations omitted).

36 Id. at 405, 217 Minn. at 225.

37 258 Minn. 467, 104 N.W.2d 902 (1960).

38 Id. at 470, 104 N.W.2d at 905.

39 258 Minn. at 471, 104 N.W.2d at 905 (footnotes omitted).

40 See Sandra Day O’Connor, “Foreword,” Magna Carta and the Rule of Law xvii, supra n. 8.

Magna Carta Bibliography

Books

Danny Danziger & John Gillingham, 1215: The Year of Magna Carta (New York: First Touchstone ed. 2004).

J.C. Holt, Magna Carta (Cambridge: Cambridge Univ. Press 2d ed. 1992).

A.E. Dick Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America (Charlottesville: University Press of Virginia, 1968).

John Hudson, The Formation of the English Common Law: Law and Society in England from the Norman Conquest to Magna Carta (Upper Saddle River, NJ: Pearson Education, 1996).

Daniel Barstow Magraw, Jr., Andrea Martinez & Roy E. Brownell II, eds., Magna Carta and the Rule of Law (Chicago: American Bar Association, 2014).

William Sharp McKechnie, Magna Carta: a Commentary on the Great Charter of King John, with an Historical Introduction (New York: B. Franklin 2d ed. 1960).

Anthony Musson, Medieval Law in Context: The Growth of Legal Consciousness from Magna Carta to the Peasants’ Revolt (Manchester: Manchester University Press, 2001).

Nicholas Vincent ed., Magna Carta: The Foundation of Freedom 1215-2015 (Chippenham, Wiltshire: Third Millennium Press, 2014).

Web Resources

The Magna Carta, National Archives & Records Administration, Featured Documents http://www.archives.gov/exhibits/featured_documents/magna_carta/ (last visited 12/19/2014). A brief description of the purpose of the Magna Carta and its relevance to American history.

Magna Carta: Discover the History and Legacy of One of the World’s Most Celebrated Documents, British Library http://www.bl.uk/magna-carta (last visited 12/19/2014). Includes articles, information on people of the time, and a timeline of the document and its subsequent impact.

Magna Carta 800th, http://magnacarta800th.com/ (last visited 12/19/2014). A website of the Magna Carta 800th Committee which is leading the effort to commemorate the 800th anniversary of the first drafting of the Magna Carta.

ABA Magna Carta Commemoration: The ABA Celebrates the 800th Anniversary of Magna Carta, American Bar Association, http://www.americanbar.org/groups/leadership/office_of_the_president/magnacarta.html (last visited 12/19/2014).

Note: The author thanks Sonya Huesman, Research and Instructional Librarian, William Mitchell College of Law, for compiling this bibliography of works on the Magna Carta.

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