That inheritance begins with the common law, made over the centuries by judges adjudicating controversies between private individuals one case at a time—a law recognized expressly in the Constitution’s Seventh Amendment. In his classic Harvard Law Review essays on “The ‘Higher Law’ Background of American Constitutional Law,” the eminent legal historian Edward Corwin notes that the common law’s true beginnings predate Magna Carta. They arose in the third quarter of the 12th century when Henry II established circuit courts and a central appeals court, which over time made the law “common” to the realm of England.
A half-century later came Magna Carta, incorporating much of that nascent private law. Thus we get the rule of law in the form of a written document, brought into being not by an enactment but by a compact—a political act that established positive law binding the king by his own hand, albeit not without the pressures of the regnant feudal system. Add the hint of a future parliament—reflected in the idea of the king’s ruling in consultation with the “common counsel of the realm,” as in chapter 12’s taxation provisions—and we have an adumbration, at least, of separated powers.
The story of Magna Carta’s travel abroad begins early in the 17th century, of course, but in the mother country, with the document’s reemergence from its eclipse under the Tudors and with the uses to which the great English jurist, Sir Edward Coke, would put the Charter in his struggles against the Stuarts and, somewhat less, with Parliament itself. Those struggles would unfold just as English colonists began settling in America—a fortunate accident of history. Thus the charter of the very first of those settlements, in Virginia in 1606, declared that the colonists and their posterity, as English subjects, were to enjoy “all liberties, franchises and immunities” to the same extent “as if they had been abiding and borne” in England— language we’d see repeated in charters from Massachusetts Bay in 1629 to Georgia in 1732.
Meanwhile, developments back in England over this period did not go unnoticed in the colonies: the 1628 Petition of Right, the 1679 Habeas Corpus Act, the 1689 Bill of Rights in the wake of the Glorious Revolution—each of which drew on Magna Carta’s “ancient rights.” Thus, William Penn, having survived his 1670 trial in England for preaching his Quaker beliefs, looked to Magna Carta when drafting his 1682 blueprint for Pennsylvania. A year later the colony’s assembly enacted laws drawing on both Magna Carta and Lord Coke’s writings on the Charter.
But as relations with England deteriorated in the second half of the 18th century, Magna Carta came again to the fore, first as the basis for remonstrations to Parliament, then to inform state bills of rights and constitutions. Virginia led the way when its legislature protested the 1765 Stamp Act, citing the “ancient Constitution” with its right of English subjects not to be taxed without their consent and its right to trial by jury, which the Act had contravened. With the several Townshend Acts that began in 1767, relations grew worse, culminating in the so-called Intolerable Acts of 1774—Parliament’s reaction to the Boston Tea Party a year earlier. Still, when the Continental Congress met in September of 1774 to draft a set of resolves, the delegates rested their case not only on an appeal to natural law but even more on the principles of the English Constitution, charters, and compacts.
Their petitions to Parliament unanswered save by “fleets of armies, the blood of Lexington, and the fires of Charlestown and Falmouth,” as John Quincy Adams would later write, the colonists soon prepared to sever their ties with the motherland. Yet documents that both preceded and followed independence continued to draw on the principles first set forth in Magna Carta, as did the Declaration of Independence itself, with its catalogue of grievances not unlike those that gave rise originally to the Charter. From the Virginia Declaration of Rights to the new constitutions of South Carolina, Virginia, and New Jersey, all drafted or ratified before independence, to the new constitutions of Delaware, New York, and Massachusetts, drafted during the Revolution, we find provisions first found in Magna Carta: trial by jury; no taxation without consent; no excessive fines or punishments; no deprivation of life, liberty, or property without due process by the law of the land; no taking property without compensation; and no paying for justice.
But Magna Carta’s influence did not end with the Revolution. It continued on to the Constitutional Convention of 1787, which gave Congress the power to tax, not the executive, as in 13th-century England, but then rested the origination of that power in the House, the body closest to the people, reflecting Magna Carta’s prohibition on taxation without the “common counsel of the realm.” And two years later, Magna Carta’s influence was especially evident when the first Congress drafted the Bill of Rights.
A few examples will suffice. Chapter 1 hardly reflects our modern view on the separation of church and state, but neither did the First Amendment’s original applications. Yet by assuring that the king would not interfere with church elections, it surely foreshadows that understanding. Chapter 20 requires that fines and punishments fit the wrong at issue and so anticipates our Eighth Amendment’s protections against excessive fines and cruel and unusual punishments. Chapters 28, 30, and 31 prohibit the taking of grain or other chattels without just compensation, a clear precursor of the Fifth Amendment’s Takings Clause—a principle just reaffirmed by the Supreme Court in Horne v. Department of Agriculture. Chapter 38 prohibits prosecutions based on a bailiff’s say-so alone, without “faithful witnesses,” while Chapter 40 promises neither to sell nor deny nor delay justice, thus anticipating the several guarantees our Sixth Amendment affords defendants in criminal prosecutions. And Chapter 39, the famous “law of the land” provision, is the clear precursor of our Fifth and Fourteenth Amendment Due Process of Law Clauses. Meant originally to protect only “freemen,” it reached many others over the years, much as with our own Constitution.
With this brief canvass of Magna Carta’s influence on American law, let me return to the point with which I began. Although America did not spring fully formed ex nihilo in 1776, there are nonetheless important and basic differences between legal developments in America and in England, going to the very theory underlying the two regimes. To be sure, the late-18th-century struggle in America, like that at Runnymede, began as an effort to wrest rights from the power in place—and in both cases in the name of ancient rights as loyal subjects. But the English nobles were rebelling against the king, whereas we rebelled against acts of Parliament, albeit enforced by the king, which explains why, once the rebellion took the form of independence, our fire was directed against the king’s “long Train of Abuses and Usurpations.” Note, too, how sovereignty in England moved gradually, and often uncertainly, from crown to Parliament, never fully to the people. Moreover, to this day England has nothing like our separation of powers: indeed, its High Court was only recently separated from the House of Lords.
But the differences are deeper than institutional, much deeper. In America, a radical shift unfolded between 1774 and 1776, culminating in the Declaration of Independence. There we addressed not the king or Parliament but “a candid World,” justifying our independence not in the name of ancient English rights but of the universal rights of all mankind. As the Declaration plainly states,we dissolved the political bands that connected us to England and instituted new government—“by Authority of the good People of these Colonies.” Where did we get that authority? From no one, save our “Creator.” We were born with it—born free, with natural, unalienable rights to rule ourselves. Thus, the Declaration of Independence became America’s Magna Carta.
Drawing, ironically, on the writings of an Englishman, John Locke, whose ideas infused political thought in America long before independence, we grounded political legitimacy on the consent of the governed, but only if constitutionally limited, leaving us otherwise free. And when we reconstituted ourselves 11 years later, we returned to those principles, stating clearly in the new Constitution’s Preamble that sovereignty rests with “We the People.” We constitute and empower government—by right. Government doesn’t give us our rights: we give government its powers, such as we do, as enumerated in the Constitution we ratified.
Therein lies the fundamental difference between the two political systems. England had its Glorious Revolution, but it never led to so fundamental a break, and to reconstituting the polity from the ground up, beginning with the moral order, from which the political and legal orders would be derived. Nor did it lead, operationally, to the kind of judicial review that Lord Coke adumbrated in 1610 in his famous dictum in Dr. Bonham’s Case.
Today, of course, the elegant theory of legitimacy the Founders bequeathed us has been largely abandoned, particularly after Progressives effectively rewrote the Constitution exactly 150 years after it was actually written. In the aftermath of that rewrite—which reversed the presumption from “all that is not given is reserved” to “all that is not reserved is given”—we’re practically back in the fields of Runnymede, repeatedly importuning our government for relief from its assumption of plenary power. And it isn’t untethered executive power—arbitrary rule by the king—that worries us so much as executive power arising from majoritarian democracy—or, more realistically, from special-interest politics.
But to conclude on a more positive note in this celebratory year, although Magna Carta began as a distinctly English statement, its sheer endurance and fecundity over time has served to distinguish it not only as a touchstone of English and American liberties but as a symbol of the liberties of all mankind. It was a major step in the advance toward liberty, and an inspiration for our Founders as they created the United States of America. Thus it remains a document worthy of our continued celebration, as we do here today.
