Magna Carta and the Constitution
Articles,  Blog

Magna Carta and the Constitution

This film is a project of the Leonore
Annenberg Institute for civics of the Annenberg Public Policy Center of the
University of Pennsylvania in partnership with the Annenberg
Foundation Trust at Sunnylands “Citizenship has every persons highest
calling.” Okay so how many of you already know
this story. The King starts acting like a tyrant taxing people without giving them
any say in how they’re governed and throwing them in jail without fair
trials. Some of the most important men of the land come together, fight back and
declare that they won’t be ruled arbitrarily by the king but by laws that
govern everyone. Now, if you were thinking of the framers and the founding of the
United States, you’re close. You were only off by about five hundred sixty years, an
ocean, and a king. Because the event is actually the approval of the original
Magna Carta which began in 1215 on this very field just outside of London. And
the King John, not George continued to reign because he agreed to play by the
rules of law. Magna Carta matters because it set forth basic principle eight
hundred years ago. Associate Justice of the United States
Supreme Court Stephen G Breyer. Among other things it said that the king, who
is the most powerful person in England, could not imprison a person and he
wouldn’t take their property and he wouldn’t hurt them except according to
law. Associate Justice of the United States Supreme Court Anthony Kennedy.
Magna Carta said the law comes from the people to the king.
This was revolutionary. And that idea that we all live according to laws and
that not even a king is above them, that began with the Magna Carta. The Magna Carta is the starting point for the English tradition of the rule of law. Magna Carta
is an assertion really of the rule of law the idea that there is a set of
limits on government power. That’s a very basic very fundamental idea. and that
idea became a fundamental principle in America. King John might just be one of the
world’s most famous tyrants. Think of Robin Hood, that was King John that was
the John that we’re talking about in 1215 Magna Carta times. You shall hang by your clumsy thumbs if you cut me again King John’s behavior was if he saw you
had some money he would think well why shouldn’t I have it? He really was the
worst king in English history by quite a long way. He’d taken the taxes he demanded the money that went with making war overseas but he’d been defeated in his
walls in France. And at home he taken taxes probably at a higher level than
any King in the past. Well the barons didn’t like that. Why
were the barons upset with King John? It boils down to with money. He was abusing
them with taxes, taking their lands. The barons were fed up with King John taking their
money and property whenever he felt like it. They United formed an army and
threatened the king, “either start acting like a good king and protect us or we’ll
find a new king who will.” It truly is the start of some notion that the king does
not have divine right and absolute power. The paper said he wouldn’t put them in
jail and he wouldn’t take their property and he wouldn’t hurt them except
according to law. Now, the barons didn’t like King John and they weren’t going to
take him at his word, so they made sure the agreement was written down. 63
different clauses all in Latin and it was 1215 people. Their paper was
sheepskin. To fit this document onto one piece of parchment onto one piece of
animal skin, sheepskin, you’ve got to merge all that and you would have
writing, very very small writing, on what is effectively the back of a sheep. This
must be the only great constitutional document in world history that he’s
limited in its scope by the size of a medieval sheep.
It became known as Magna Carta which literally means the Great Charter. But
this is not a “We the People” moment. The barons were perfectly happy to keep the
king. The barons wanted a say in power they wanted a share of power. This first
Magna Carta is full of little things that only a baron would want. It’s got
some very strange things in it. Clause 33 forbids the buildings of
fish wares on the River Thames and the River Medway. What on earth have fish wares got to do with yours or my liberties? The idea that you couldn’t take corn or wood without paying for it became, “the government cannot take property without
just compensation.” So narrow clauses that were written were focused on a
particular problem, but they had a meaning that was elaborated over time
that became greater than the writing. Then there’s this: “no free man shall be
arrested or imprisoned or disseized,” that means having his property taken
away, “or outlawed or exiled or in any way victimized.” This is King John speaking,
“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.”
Now that was a rather radical idea then. In other words the king, who up until
that moment on this field ruled as if he had powers given to him by God, the king
was agreeing to have his power limited by the law of the land. Now what is the
law of the land? Magna Carta doesn’t specify what the law of the land is, but
he does lead to the expectation that there is something called law that can
be recognized that is customary that other people justices and judges can
actually impose. And this is how way back in 1215 this document set in motion an
idea that informed the way Americans built their own constitution and lived
today. See here, rule of law means that the law not any one person, but the law
is ultimately in charge. You obey the laws as they’re written and
everyone has to obey the laws equally. No one is above the law. The idea behind the
rule of law is simply it’s the law that is the ruler we don’t have a person
who’s arbitrary will tells us what’s permissible and what’s not. We have a
system of laws. Arbitrary behavior. Do whatever you want behavior! Wouldn’t it
be nice if what’s mine is mine and what’s yours is mine too. And this phrase
right here, “law of the land,” came to be the idea we know today as due process.
They cannot take, the government, your liberty. They cannot take your property,
except according to fair law. Due process means fair. Not just law but fair law. In
a country governed by the rule of law, due process is the pathway we take to
get to a place where we can say, “yes the rule of law was honored here.” You can’t
have one without the other. Pretty much the minute the King in the
barons left the field, King John living up to the reputation of a worst King
ever, went straight to the Pope and had Magna Carta annulled, canceled. Magna
Carta was successful for about ten weeks. But a funny thing happened on the way to
constitutional democracy. Turns out it’s really hard to annul a good idea once
it’s been written down. After John died, future Kings agreed to be bound by Magna
Carta, at first to keep their peace with the Barons but gradually it became a
tool for all the people to remind the king he wasn’t above the law. So it
became part of the customary law of England. In a sense the issuing of Magna
Carta is a statement of power. It’s a statement if there’s enough power in the
people to make certain that the king will agree to it. That gained immediate
acceptance from the people. The people insisted that the successors to King
John sign on this Magna Carta. This continued for hundreds of years, was
nearly forgotten then Magna Carta was brought back to life just as Britain was
forming colonies in the New World by Sir Edward Coke. Edward Coke was one of the
most important jurists in British history. Edward Coke, even though it looks like it’s spelled “coke” it’s Cook.
As attorney general he prosecuted Sir Walter Raleigh, and was eventually
promoted to Chief Justice of the Court of Common Pleas where, he became known as a champion of common law. The British Constitution is not written it’s this collection of precedents that the common law, and statute law. It’s what’s
accumulated cook argues that the English People have fundamental rights under an
ancient Constitution, rights that no king can take away. Coke says these
constitutional rights are grounded in Magna Carta and safeguarded by the
elected representatives of the people: Parliament. Edward Coke is tremendously
important in the invention of this idea that there was this ancient Constitution
that defended the liberties of Englishmen as freeborn, free people and,
Parliament is the thing that protects the freeborn English against these
potentially tyrannical Kings. Coke wants a world where there are
things the Crown is not allowed to do. That’s our modern notion of
constitutionalism, but because the British don’t have a written
constitution that’s hard to point to. He really is fundamental to the rediscovery
of Magna Carta. Coke said the king is under no man but he’s under God and law. Lex facit regem: the law makes the king.
He argued that Magna Carta limited the Kings’ power. That because of Magna Carta all free Englishmen, not just Barons, had rights a king had to respect, and with
that argument Coke went on to write British law asserting rights that are
very familiar to Americans. Sir Edward Coke is one of Britain’s champions of
the rule of law and due process and he argued that those ideas came from Magna
Carta. a lot of our understanding of the areas where government ought to be
limited come out of this early battle in the 17th century with the Crown in England,
and in a world where many people were beginning to think that Magna Carta was
part of those laws and liberties it would have meant that in essence Magna
Carta sailed with the colonists as they sailed across the Atlantic. Remember they
called it the New World. Most of the people leaving England were determined
to establish new lives and new ways of doing things. They saw themselves as
loyal subjects of the Crown but they hoped for enough independence an ocean
away to practice different religions and economic independence so they could have
more control over their lives. Edward Coke actually helps write the charter of
Virginia and Magna Carta is cited in colonial laws. And when King George
tramples the rights of the colonists, they look to Magna Carta. The American
framers certainly would have used Sir Edward Coke’s legal texts as part of their
legal education and so they would have been influenced by that thought as well.
Coke’s writings later became of immense importance for the colonies. Magna Carta
becomes a rallying point for the colonies. It becomes an icon. It’s
reproduced on currency, it’s put up there on the state capitol buildings across
America. So as King George starts to impose new taxes on the colonists,
imprison them without fair trials, and invade their homes for no reason, the
colonists begin to realize that maybe the way they’re governing themselves is
what they really wanted all along. That maybe they should stop claiming English
rights and write their own. The idea that a king doesn’t have absolute power turns
into, “we don’t need a king, we’ll live by the laws that we make ourselves.” Magna
Carta is the starting point of an idea that the Americans come to believe they
are the fruition of it. I mean they’re very proud that they have gone one step
further than the British constitution. That people are sovereign. If you look at
the complaints against King George that are set out in the Declaration of
Independence, there are some that relate to just bad things that King George has
done to people, but the end goal of the American Revolution is really what’s set
out in the Declaration of Independence. It’s the right to govern ourselves. So
when Americans win that right by winning a long and bloody war, the framers draw
on the Old English law, but they invent something new. They will govern
themselves. So limiting the power of a king becomes limiting the power of our
own government. Probably the biggest conceptual break that the American
Constitution makes from the existing British system is that no single branch
of government has the ultimate authority. Our Constitution sets itself up as the
supreme authority in our system of government. The framers don’t discuss
Magna Carta as they write the Constitution, but they still borrow from
it. Economic protections like no taxation without representation, even standard
weights and measures, a phrase taken directly from the original Magna Carta
and some really important ideas that evolved from centuries of Magna Carta
and Cook’s interpretation of it become fundamental rights written into our
Constitution. Fair trials, habeas corpus, and an independent judiciary to protect
those rights. And the connection is even stronger in the Bill of Rights.
You see it’s influenced more with the Bill of Rights where we get these limits
on the government that has been created. Because the idea is: here’s this
government perhaps it’s going to be dangerous, perhaps it has too much power,
we want to put down in writing certain limits and we’re going to have an
independent judiciary that will enforce those limits. The phrase in Magna Carta
article 39 is “law of the land” within just about 50 years some commentators
were calling it “due process” and so it became a synonym. The language of the
Fifth Amendment “due process” comes from all of those colonial charters that were
heavily inspired by Magna Carta. It’s the foundation for jury trials and
criminal procedures and the rule of law and it’s written down for everyone to
see. In 1215 Magna Carta was written and then sealed. Declaration of Independence
and the Constitution and the Bill of Rights they’re all written documents and
that is a very very strong history at least from the United States of America
to have these written documents that symbolize our rights. And in the case of
our Constitution, protects those rights. The fact that it’s written means that a
lot of people who don’t necessarily have the same upbringing and cultural
differences can all refer to the same thing. So people all over America can
hold up this document, and they do. And when the rule of law broke down as it
did during the Civil War the, Constitution had to be amended to make
sure fundamental rights like due process were protected equally, and for everyone.
So due process actually appears in the Constitution twice.
You say “why twice? because it’s so important we want to write it down twice?”
well when they wrote this document the Constitution they were creating the
federal government. With the Bill of Rights, the framers wanted to limit the
power of the new national government so the Fifth Amendment protects against
federal power. After the Civil War to protect the rights of 4 million new
citizens, former slaves, Congress expanded due process and put it in the 14th
Amendment, this time to protect those rights against the states. And that’s why
that 14th Amendment says “no state.” “No State shall deprive any person of life
liberty or property without due process of law nor shall any state deny a person
equal protection of the law.” So now say it twice. Feds,
you can’t infringe our Liberty, you must follow a rule of law.
And states that goes for you too. But even a civil war didn’t result in a
protection of due process or the rule of law for everyone.
We’ve often had to rely on our independent judiciary to guarantee these
rights. One such case is Powell vs. Alabama, from 1932, a case to determine
the due process rights of the Scottsboro Boys. We all know that after slavery
ended, that did not mean the discrimination ended, and there was
segregation in the South and black people were treated terribly. They found
themselves not given a trial at all no fair process at all. Knobs would take the
law into their own hands between 1880 and the late 1940s, there were some 4,000
black Americans lynched. These lynchings weren’t random violence, they were terror.
But when nine black boys, the youngest only 13, were pulled off a train in
jailed and Scottsboro, Alabama, people around the country were demanding that
lynching be stopped. Accused of raping two white women, instead of being lynched
in the town square, the Scottsboro Boys were taken inside a
courtroom. It was sort of an indoor lynching versus an outdoor lynching
there was no commitment to due process. So there they were in this Alabama
courtroom on trial for their lives because this was a capital offense. They
hadn’t seen a lawyer until the day of trial. They faced the death penalty with
no lawyer until just hours before their trial began. All nine men were given one
lawyer, a real estate attorney from Chattanooga, Tennessee, the only lawyer in
the region who would take the case. The judge, jury, court officers, and everyone
in their line of sight was white. The Scottsboro case was a terrible situation.
Many years later it was determined they had nothing to do with it, but at the
time they were convicted in a court of rape and sentenced to death.
The case went to the Supreme Court and for the first time since the inception
of the 14th Amendment the court insisted that black Southerners had a right to
due process with real legal representation. It says “you cannot
deprive a person, state, of life without due process of law.” That you have to have
a lawyer. And that’s an elementary part of a process, of a fair process,
particularly process that could end up with your death. The court said, “wait a
minute, you can’t just bring them in and have a
sham trial and and pretend as if you’re protecting their rights when you’re not.”
Powell is an example of protecting vulnerable citizens with due process and
restoring the rule of law or what the Barons would have called “the law of the
land.” But what about the idea that no one is above the law, limiting the power of a
president? Perhaps the most noteworthy case of the court telling a sitting
president he had to follow the rule of law was US versus Nixon. When five
burglars were caught breaking into the Watergate Hotel offices of the
Democratic Party during the presidential campaign of 1972, the FBI started to
investigate. The people who broke in had cash in their pockets, many thousands of
dollars. It didn’t take long for the FBI to determine that these burglars had
been paid with cash from President Richard M. Nixon’s re-election
committee. The question that everybody was asking about the president, “is what
did the president know and when did he know it?” The big question of the
Watergate scandal was: had the president put himself above the law? Then, in the summer of 1973, the nation was shocked to learn that the president had installed a
secret taping system inside the White House. Every conversation in the
presidential office, every telephone conversation that the president had, was
being taped. Nixon is having conversations with his top aides, in
which President Nixon is trying to use the CIA to stop an investigation the FBI
is conducting as to whether people who worked for Nixon had committed crimes.
And when special prosecutor Archibald Cox issues the subpoena ordering the
president to turn over the tapes because they might contain important
evidence, the president orders his Attorney General to fire the prosecutor.
The president is about to interfere with a criminal investigation of himself. The
Attorney General refuses and resigns in protest.
President Nixon then orders the next in command, the Deputy Attorney General to
fire Cox, and he refuses and resigns. President Nixon then orders the
Solicitor General to do it and he does. This is known as the Saturday Night Massacre. And at that point the, House of Representatives sprung into action. I
mean, it had refused to do anything for month after month after month, but after
the Saturday Night Massacre, when the American people said we are not a Banana
Republic and we cannot have the president picking his prosecutor, that’s
when the House Judiciary Committee decided to commence impeachment
proceedings against Richard Nixon. It turned out, he was wrong in thinking that
he was above the law. The case went to the United States Supreme Court which
issued a unanimous decision against the president on July 24th, 1974. Even the
president could not withhold evidence in a criminal investigation. Just 16 days
later, rather than face impeachment, the president resigned. “Therefore I shall
resign the presidency effective at noon tomorrow.” The Nixon decision affirms rule
of law by saying even the highest person in the country is an outside of the rule
of law. We’re all bound by the rule of law. We are a government of laws and not
of men, and our concept of due process and our concept of law being superior to
the president goes back to Sir Edward Coke, back to Magna Carta. The government
is bound by the law and of course this is Magna Carta. And in the end
President Nixon complied with the law and handed over the tapes.
A fair and transparent process led to the rule of law, and not even the
president is above it. You have to follow the law, that’s what the rule of law
means. No individual person is so pure, that we can trust them with arbitrary
power. We have to have laws that they cannot rise above. And
that’s the essence of the Magna Carta. And that’s the essence really of the
Constitution. Before Magna Carta it took 800 years to come up with the idea that
the people are in charge not the ruler. The Magna Carta is part of the mindset
of a free people. 800 years ago, barons and a king met on this field and agreed, for the first time, that a king is not above the law and has to respect certain
rights of his subjects. They wrote it down and Americans took those ideas,
expanded them, and made them bedrock principles that we live by today. No one
is above the law and we all have rights our government must protect. The best way
to see the Magna Carta is the first time that efforts were made to constrain and
restrict absolute power. It’s a sort of starting point that leads all the way to
“We the People.”

Leave a Reply

Your email address will not be published. Required fields are marked *