February 1, 2016 | Lecture on Legal Issues
Magna Carta is one of the foundational documents in Anglo–American legal history. It began, not as a statement of principle, but as a peace treaty, seeking to end the English barons’ rebellion against King John by forcing the Crown to adhere to the laws and customs of the realm. Magna Carta was initially thought to be a failure because King John repudiated the treaty almost before the ink was dry. But time has been good to the Great Charter. It is difficult to overstate the importance of Magna Carta in the development of Anglo–American law. English law treats it as “the Bible of the English Constitution.” It stands as proof that a written document can make important revisions to the law, fend off tyrannical government officials, restrain even the sovereign’s power, and grant rights to the entire community—an enduring legacy that helped to establish “the rule of law.”
Daniel Hannan: Let me take you back to another summer’s day in August 1647 in London—a tense and frightened city. The second phase of the English Civil War had just come to an end, resulting in victory for supporters of parliamentary supremacy over supporters of monarchical absolutism. The troops of the New Model Army, mainly Calvinists, were marching angry and unpaid on the capital. In a gesture to conciliate the soldiery, Parliament appointed their commander, Sir Thomas Fairfax, as Constable of the Tower of London.
The old Roundhead general’s first action was an extremely encouraging one. He called for the greatest treasure in the Tower to be brought before him—not a crown or a scepter or casket of gems—but an old desiccated parchment covered with barely legible Latin script. As Fairfax raised one of the last surviving original copies of Magna Carta, he breathed reverentially, “This is that we have fought for, and with God’s help, we must maintain.”
Now scroll forward to 2012 and to a different British prime minister in the rather less rarified surroundings of the David Letterman Show. David Cameron, the serving British Prime Minister, is asked by his host, “What do the words ‘magna carta’ mean? Literally, what’s the translation?” Cameron said, “I don’t know.” Now, I don’t really believe that he didn’t know. David Cameron is a product of our most prestigious private school. He would have spent five years at a pushy hothouse prep school doing Latin and another five years at Eton.
I suppose it’s possible he didn’t know. Winston Churchill, once, in the House of Commons, translated a piece of Latin, as he put it, for the benefit of any Etonians who might be present. So I suppose it is just possible that David Cameron really did not know the meaning. My private theory here is that he was hamming up the part of the Hugh Grant–type British prime minister because we like to think that Americans like that sort of thing. But the point is his audience was much better informed than he was.
It’s one of the curiosities of the story of the Great Charter that it has always been a bigger deal on this side of the Atlantic than on mineW. It was cited by implication first in the resolutions of the First Continental Congress then again implicitly in the grievances that accompanied the Declaration of Independence. The first state seal adopted by Massachusetts was a patriot with Magna Carta in one hand and a sword in the other. The charter has been cited more than 100 times in U.S. Supreme Court rulings. It was printed on North American soil as early as 1687 by William Penn.
Now, why is it that Magna Carta mattered more on this side of the Atlantic than in the Old World? Well, I think the short answer has to do with who made the journey and when. The first Americans had come geographically and confessionally from those sections of English society where the mania for Magna Carta was at its height in the 17th century. They’d come particularly from the eastern and southeastern counties of England, which is why when they arrived in New England, they named their new towns for their old: Dedham and Boston and Cambridge and Hartford and so on. They were largely Puritan congregations. They had left the shores of England at a time when Parliament was pressing Magna Carta into its quarrels with the Stuart Dynasty and had made this old piece of paper a central part of their claim that there was a balanced constitution that stood above the Crown. Now we can talk later about whether that was something they had exaggerated at the time.
Be that as it may, the first Americans carried the bias and position of those parliamentary radicals to their homes in the New World. Their belief was that Magna Carta was absolutely a part of their patrimony. Just as their horse or their house had been inherited from their parents, so had this document. In other words, it was not a charter from another age that happened to inspire them. They regarded it as the actual constitution, the current supreme source of law. That was why they cited it in their grievances against the Crown. When the argument was first made that there should be no taxation without representation, its authors didn’t until much later try to advance this as some universal principle. Rather, they rooted it very directly in Article 12 of Magna Carta that says that no “scutage”—meaning “money raised for war”—shall be levied except by the common council of our realm.
In other words, those patriot leaders in the first stages of the revolution did not see themselves as revolutionaries, but rather as conservatives. In their own minds, they were defending the fundamental liberties that they believed they had been born with as Englishmen. The innovators, the radicals in their eyes, were those around the court who were seeking to impose an alien, continental, foreign type of constitution.
Now how had that divergence come about? How was it that in England or by then in Great Britain and in the colonies there was this difference in understanding about the role of the Charter and the balance of authority between Parliament and citizen? What had happened is that in the Old World, Magna Carta had come to be seen, especially after the Glorious Revolution of 1689, as a guarantor of parliamentary supremacy whereas in the New World, it was still seen in its older context as something that stood equally above both Crown and Parliament. It contained, therefore, the genesis of what was to become the U.S. Constitution, the idea of a supreme law that was above the legislature. It’s something that was fundamental.
The real miracle of Magna Carta is in understanding quite how awesome, quite how radical that concept must have been when it was first adumbrated. We now take it more or less for granted that governments don’t just get to make up the rules as they go along. It takes a real mental wrench to see how absolutely transformative that concept must have been 800 years ago. Nobody had ever written it down before. What happened on that reedy stretch of river bank in my constituency 800 years ago was the most important bargain struck in the history of mankind. Magna Carta was the first time that the law was conceived of as something bigger than the will of the king or the most powerful man in the tribe. It’s almost impossible now to imagine what a revolutionary idea that was—that above the king was something that you couldn’t see or hear or touch or taste, but that bound the sovereign as surely as it bound the meanest subject in the kingdom. In that concept lie the seeds of all the freedoms that we now regard as modern and rational and comfortable. Regular elections, jury trials, uncensored newspapers, equality between men and women, habeas corpus—all of them have their origin in that basic fundamental idea that the law stands above the Crown, that the rules stand above the rulers.
William Pitt the Elder talked about Magna Carta as “the Bible of the English constitution.” English in those days of course implied all of the English-speaking peoples. He described its central power as being this idea that you don’t get bullied by somebody who happens to be higher up the social scale than you. He said:
The poorest man in his cottage may bid defiance to all the forces of the Crown. It may be dilapidated. The roof may have holes in it. The rain may enter. The winds may enter. But the King of England may not enter, not all his forces may cross the threshold of that dilapidated tenant.
All of that goes back to that extraordinary charter whose birth we celebrate this year, and in that phrase of Pitt’s, “Bible” actually is not a bad metaphor.
I always thought of Magna Carta as the Torah of the English-speaking peoples. It’s the text that sets us apart while at the same time offering universal truths to the rest of mankind. It’s something that happened to take place among the English-speaking peoples, but that is applicable anywhere if people adopt the same precepts. It’s why Hong Kong isn’t China. It’s why Canada isn’t Mexico. It’s why Bermuda isn’t Haiti. What an extraordinary secular miracle. It’s one that has a special place for all of us wherever our ancestors came from who now speak this language and live in common law societies. And so what a strange thing—Runnymede, the place which has as good a claim as any to be called the birthplace of freedom—what an extraordinary oversight that there was never a monument there until 1957 when a pillar was finally erected by the American Bar Association rather proving my point about how much more seriously you chaps have always taken it.
I am glad to say that we have rectified that omission. I was very proud to have been involved with the raising of the first British memorial at the place where freedom was born in 800 years. What did we hope to gain by raising that monument? Well, there’s nothing we could do that could add or subtract a single sentence from the story of liberty of the last 800 years, but we could signify our own attitudes through our actions. What does the builder of the medieval cathedral hope to achieve when he lays the foundation stone of a building that he will never see and that, if he’s very lucky, his grandson might finish? That’s how long a cathedral took to build in the Middle Ages. He didn’t think that a building would make God any bigger, but he believed that he could show what his community understood about their place in the cosmos.
In the same way, when we erected our monument, we couldn’t make Magna Carta any greater than it’s shown itself to be as a guarantor of freedom and property, but we could show what it meant to us. Perhaps our statue will still be there in 100 years. Perhaps it’ll be there in 800 years. I don’t know what else will be true in 800 years. It may be that there will have been some total apocalyptic civilizational collapse. It may be that the Thames is no longer there, that there’s some blasted wasteland. Maybe it’ll be like the final scene of Planet of the Apes. Some future Charlton Heston will come crawling along the sand, and he’ll see the head of our statue poking up. And you know what? It’ll tell him that in 2015, we still cared about freedom.
A. E. Dick Howard: The question it seems I ought to address is one that has implicitly been laid on the table: It’s obvious why the English should care, whether they do or not, about something which their ancestors produced, but why do we care? That was 800 years ago—a king and some discontented barons working out what was an effort, a sort of a peace settlement of a civil war between them a long time ago in the Middle Ages. What’s it to Americans? My job is half as easy as Daniel’s because I only have to start 400 years ago instead of 800.
I’ll start my story at Jamestown because the Virginia Company Charter of 1606 is a very suitable point of departure for this narrative. That was a charter in which Lord Coke had a hand. It was a commercial company charter. Most of its provisions deal with all the riches that Englishmen thought they would find in Virginia, gold and silver. I’m not sure if you’ve seen much gold and silver in Virginia, but they found tobacco at a later time. But there’s a provision in that charter that guarantees to those who immigrated to Virginia the privileges, franchises, and immunities that the colonists would have enjoyed in the mother country.
Now it’s undefined as to exactly what the content of that language was, but it must have meant something. It was an assurance that, if you pulled up roots in Sussex or Surrey and came to this wilderness called Virginia, you didn’t leave your rights behind. You brought them with you. Now, that could have been boilerplate language. It might have been forgotten. It turns out that history shows us that it was not. That same language was then repeated in the charters of the other colonies—Massachusetts Bay, Maryland, and others—regularly from one to another.
As time passed, the canons of English law were reinforced by a number of other mechanisms. For example, the laws or ordinances passed by colonial assemblies had to be consistent with the laws of England. Certain cases worth a certain amount of money could be appealed to English courts. Laws were often sent over to the Privy Council or to the Board of Trade for review in England. So over a period of time, it’s interesting how early the notion took root that laws were not laws simply because they had been enacted by a positive body, but they had to conform to some external standard. That came to be part of the ritual of colonial America.
It was then reinforced. William Penn has been mentioned. Magna Carta itself was published and available in the late 17th century in Pennsylvania. After those first colonies were planted—nearly all save Georgia in the 17th century—one then fast-forwards to the 18th century to see what became of that early language. On the eve of revolution in Boston there was the famous argument of James Otis, the so-called Writs of Assistance Case. Writs of assistance were in effect a kind of blank check, an open-ended search warrant that allowed you to go into a merchant’s premises and look for whatever you liked. James Otis argued on behalf of the Boston merchants. That argument is interesting in that he cited as a proposition that the law, this particular provision, was in our modern sense unconstitutional.
Now we had no constitution as we understood it then, so what in the world was James Otis talking about? He cited Dr. Bonham’s case, a decision of Sir Edward Coke—the great 17th-century commentator on Magna Carta, leader of the parliamentary forces contending against the overreaching of the Stuart monarch James the First who came from Scotland bringing with him the notion of the “divine right of kings,” which was on a collision course with ideas of parliamentary privilege. In Dr. Bonham’s case in 1610, it was probably dictum. It’s not clear, but certainly Coke said even an act of Parliament would be controlled by the common law. If an act of Parliament were against right reason, it would be null and void. That begins to sound like the Supremacy Clause of the U.S. Constitution. So Otis was making in 1760 what I would call in our sense a constitutional argument that some laws are simply null and void.
Now imagine the reaction to that argument in London, because whatever Coke’s ideas may have been in 17th-century England, by the eve of the American Revolution in the 18th century, Blackstone’s Commentaries, 1765 to 1769, had been published. Blackstone laid it down in no unmistakable terms that Parliament was sovereign. So by that point, Dr. Bonham’s case was not really being cited in the English reports. We now have the Blackstonian thesis of parliamentary supremacy. So in London, it’s Blackstone. In America, it’s Coke. The two sides were talking past each other. It’s a small wonder that the English said, “What are you Americans talking about? Parliament can do what it pleases. You Americans have no real say in it.”
Well, that produced after the Seven Years’ War, the French and Indian War in this country. When that was settled, Great Britain of course had won military victories and acquired a great deal of real estate around the globe, but it was very expensive. The war cost a lot of money, and it’s interesting how many constitutional crises take place because somebody needs money and somebody else has it. Parliament passed the Stamp Act in 1765. It was a not unreasonable thought on the part of Parliament: “Look, we defended your frontiers against the French and the Indians. You ought to help pay some of the bills, pay off this debt.” That produced in turn the Stamp Act Congress and resolutions against that particular measure. The Tea Party broke out in Boston. The British put the Boston port under a blockade, quartered troops in houses in Boston, and the like. That brought the other colonies to the assistance of Massachusetts. There was a rallying together. Committees of Correspondence were formed, and the colonies were making common cause.
What I find interesting for purposes of today’s discussion about the resolutions that were drafted in the Continental Congress of 1774 is there was a fair debate over on what do we base these rights. We’re going to insist on the right of jury trial, the right of no taxation without consent, and rights of that sort. But where do they come from? They don’t just appear in air somehow. The debate among the delegates took the form of some delegates saying that these are natural rights; they’re providentially given, God-given rights that we have because we’re human. Other delegates said it really ought to be grounded in the colonial charters. Yet others said that it should be the Constitution, in particular Magna Carta. That’s where it comes from. So they resolved this as bodies sometimes do by agreeing to put all of them in there—saying these are our rights and they’re drawn from natural law, from the colonial charters, from the British Constitution, and from Magna Carta. It’s a very American kind of thing.
If you find yourself traveling—in England, for example—and you have trouble explaining American constitutional law to your friends there, one reason is that it’s always been messy. The French are very analytical. They have a code and they always trace everything back to the code. It’s nicely logical. American constitutional law is not like that. Those of you who have studied law in American law schools, remember your first day in constitutional law and it was a bit of a mess. So I think it starts in the Revolutionary period where we were willing to sweep all these arguments, Magna Carta and the others, with it as ways of talking about our rights. It was a kind of eclecticism if you’d like. So in the Revolution, Magna Carta was very much part of the argument, but not the whole extent of it.
Then as the Revolution broke out, the first thing Americans did on the constitutional scene was to start writing constitutions. I find it interesting in Williamsburg in May of 1776, British gunboats were out in the Chesapeake Bay, but the same body that instructed Virginia’s delegates in Philadelphia to introduce the resolution for independence set to work on that same day on Virginia’s first constitution. Actually, they set to work on two documents: First, a declaration of rights that set down what the rights of Virginians were and by extension, Americans, and then they went to work on a frame of government. It’s pure John Locke, pure social contract, the notion that first you declare your rights. They pre-exist government. They don’t depend on government for their existence. Then, you go about setting up a frame of rights. That Virginia Declaration of Rights is an interesting blend of social compact, natural law, and natural rights, and the traditional rights flowing all the way back to Magna Carta, the English Petition of Rights, the Bill of Rights of 1689, and the other liberty documents of English history.
But there was a problem. Thomas Jefferson hated that first constitution. He spent the next 50 years complaining about it. I expect one reason was because he wasn’t there and Jefferson couldn’t imagine you could write a constitution without him being on hand. But his objection was fundamental. He said the same group of men who pass ordinary laws for Virginia wrote this constitution, so it’s just another law. How can you say it’s fundamental law when it’s mixed in with the other body of laws? What you have to have is a body whose explicit purpose is to write a constitution.
So I have to give credit to my friends in Massachusetts. What they did in 1780 was something Virginia had not done, and that is call a constitutional convention. In Boston, they tried to write, as Virginia had done, an ordinary constitution. The people in the western part of the state, Berkshire and the more radical counties of the state objected on the same grounds Jefferson did to the Virginia constitution. So in Boston, they elected delegates to a convention whose job was to write a constitution. They had a subcommittee made up of John Adams, Samuel Adams, and William Bowdoin. They, in turn, gave all the work to John Adams who, being the class nerd, the workhorse, said no problem, I’ll write you a constitution. So John writes a constitution for Massachusetts. It is one of the absolutely most important constitutional documents in American history, and it accomplished something the Europeans had not done, something Virginia had not done, namely, the idea of the constitutional convention, placing the constitution on the basis of popular consent.
Now, state constitutions being written, we come to Philadelphia in 1787. This is an interesting part of the story because we don’t have a full transcript, as you probably know. James Madison took notes. Maybe 10 percent of all that was said occurs in his notes, so I might be wrong about this, but as far as I know, Magna Carta was never mentioned at the Philadelphia Convention. Now that strikes me as pretty strange. After all this talk about how important Magna Carta was and how it supported American rights, why would it not have been part of the discussion at Philadelphia? My surmise would be that Magna Carta was a bargain between barons and the King. It limited royal power. It told the King he didn’t have unlimited power. It was not an attempt to limit government power generally. It said nothing about what later would be legislative or judicial power.
So our Constitution takes a step beyond Magna Carta in that government power across the board is limited, not simply executive power. Also the Federalists who defended the Constitution said this is different from Magna Carta in that Magna Carta was in effect a concession by the King to the barons whereas our Constitution is founded on “we the people,” on popular sovereignty. As you know, the Federalists made a nearly fatal mistake at Philadelphia. They rejected the proposal for a bill of rights on the grounds that it really wasn’t necessary. The state constitutions had bills of rights; therefore, why add one to the federal constitution? Indeed, Madison thought it might even be dangerous in that enumerating some rights might suggest the nonexistence of others.
Well, that handed the anti-Federalists an argument, a nice cudgel, because then they could say to the people of America that these Federalists are taking our rights away. So James Madison somewhat reluctantly finally came around to the position of ratifying the Constitution and then adding a bill of rights. So the story at this point of the founding period is an interesting combination of innovation on the one hand and tradition on the other. One such innovation, judicial review, may well be America’s most interesting single contribution to constitutionalism around the world. American federalism, I think, was certainly a novel idea. On the other hand, it’s blended with tradition drawn in particular from the English documents like Magna Carta.
So, what would I argue was the legacy of Magna Carta?
First, the idea of the rule of law. That seems almost tautological except that rule of law is not as easy to define as you might suppose. I remember being at the table in what was then Leningrad, not St. Petersburg, when they were drafting the first post-Soviet constitution for Russia. I don’t speak any Russian, so we were working through a translator, and I discovered the translator was rendering the English language phrase “rule of law” as “a socialist legality.” I said, “I don’t think that’s quite what we have in mind.” Magna Carta, I think, yields rule of law.
Second, the articulation of fundamental rights. There’s a notion that from Magna Carta to the 17th century to our time that fundamental rights are at the heart of constitutional government.
Third, the idea of a written constitution—simply the idea of writing it down. Daniel has pointed to this innovation, the idea that Magna Carta represented a revolutionary breakthrough. Well, that’s been for 800 years now, we write it down as we do in state and federal constitutions.
Fourth, perhaps one of the most important contributions is not so much what Magna Carta meant at the time it was agreed to, but what it came to represent over a period of time. That is the idea of constitutional supremacy, the notion that there is a hierarchy of laws in which some laws are really superior to others. That was James Otis’s argument in Boston that Parliament could not do what it pleased. It was a road that finally takes us to Article VI, the Supremacy Clause of the U.S. Constitution.
Those of you who have studied law, remember the first time you read Marbury v. Madison? When you read that case, were you at all puzzled by the fact that it did not start with the Supremacy Clause? Chief Justice John Marshall talks about the idea of a constitution, the whole notion of fundamental restraints on government inherent to the idea of constitutionalism. Then later in the opinion, almost as an afterthought, he says there’s the language of Article VI, the Supremacy Clause. What I take away from Marbury is that Marshall is saying there are certain propositions which you simply must recognize as adhering in a constitutional government. Finally, there’s the grounding of American constitutional law in the common law tradition. It’s simply hard for people in civil law countries to understand how Americans do constitutional law: the notion of precedent, the notion of ideas developing, building on earlier innovations. You have constitutionalism in which generations add their new insights and it grows. It’s certainly a Magna Carta story because the 17th century’s idea of Magna Carta in England was not the same as the 13th century. Ideas like trial by jury, constitutional supremacy, and later developments came from Coke’s interpretation of Magna Carta for his own time. That inevitably has affected how we think about constitutionalism in America.
So that’s the American story of Magna Carta. We are 800 years later. We don’t have a king. We’re not worried about feudalism and all the problems that the barons faced, but that document has survived to be very much part of not simply England’s heritage, but American constitutionalism as well.
Question: Daniel, I’d like to give you the opportunity if you have any comments on what Dick had to say, please feel free.
Hannan: That was very interesting and very informative. I have just a couple of points that occurred to me as you were speaking. Something that is sometimes passed over a little bit on this side of the Atlantic is the extent of commonality at the time that these events were taking place that led to the rupture in the 18th century. First of all, just a small point of anachronism. In common with most people nowadays, you talked about the British blockading Boston. Nobody at the time would have ever used such language. In 1773, everyone was British. The entire population of Massachusetts was British. It would have been a bizarre thing, and you don’t find any contemporary language to that effect. It was seen as Tories versus Whigs or as supporters of the King versus opponents. It was understood as a civil war within a common polity where on both sides of the Atlantic there were supporters and opponents of the ministry.
It was really only when France got involved after 1778 that anyone started seeing it as a national conflict. Of course, as happens after all successful revolutions, the revolutionary party immediately rewrote the recent past to pretend that there had been a kind of extant national consciousness throughout. But you can’t find any contemporary sources that sustain that. It’s worth stressing that point because it ties in with the theme of this being the joint patrimony of common law English-speaking societies that we’re discussing.
Dick spoke about John Adams and the Massachusetts Constitution. The one phrase that everyone will quote about that process is possibly the most famous thing that John Adams said—that it was “a government of laws, not of men.” Except that, astonishingly, that phrase turns out not to be from John Adams at all. He was quoting a 17th-century English Whig called James Harrington. I’m indebted for this information to Iain Stuart Murray from the Competitive Enterprise Institute, who drew to my attention this rather brilliant man, James Harrington, who had escaped from my notice up until that moment. But again, it was the most natural thing in the world for John Adams or for any Massachusetts radical in those days to draw on the radical Whig tradition of which they very much saw themselves as being a part, as Thomas Jefferson did. Just look at whose pictures are on the walls at Monticello.
I think this is fascinating what Dick said about the Bill of Rights and the committee-designed mélange. Anyone in this room who’s been involved with politics will know how these compromises take place. You don’t want to offend the other guy, so you agree to have a little bit of his language in as well. This does lead to one of the stranger aspects of the Bill of Rights. You have a Constitution that says in the clearest language that its authors could devise: Anything that is not explicitly permitted to the government is denied to the government. The federal government can’t do anything except what we got adumbrated here. Then the Bill of Rights says here are some things that the federal government really, really can’t do. There’s a fundamental contradiction there. What’s fascinating—again, it stresses the commonality of our heritage—is the extraordinary identity of language between the English and American Bill of Rights. This was a cut-and-paste job. They didn’t have the capacity to do it online then. They probably didn’t even cut and paste it. But the words are identical. The right to bear arms and the prohibition of cruel and unusual punishment were lifted word for word without alteration from the 1689 Bill of Rights. Again, it’s proof that although people were using, by then, language of natural law and universal rights, they were still thinking as English Whigs in the tradition in which they’d been raised.
Final points that I thought were the most significant things. First of all, I couldn’t agree more with what Dick said about the peculiarity of common law and how anomalous it is by global standards. The Anglo–American common law tradition really is the odd man out. It’s not how anyone would design a legal system. The civil law system is a much more natural and logical one. You would expect, if you were drawing up how a country is going to work, that you would write down a law from first principles and then apply those principles to a specific dispute. That’s how the rest of the world does it—and that’s what would make sense.
How did our system come about—this extraordinary, beautiful, miraculous anomaly where nobody wrote the law down? Nobody can really say how it got going. We inherited it from our parents, they from theirs, they from theirs, and so on back to some point in the prehistoric Dark Ages. Each case serves as a starting point for the next, so the law grows like a coral, case by case, without anyone having written down from first principles what it should say. Nobody would design such a system. Yet the happy effect is that the law becomes an ally of the individual rather than an instrument of state control. It’s open to the citizen seeking redress instead of being at the disposal of the government. It implies residual rights, and it’s an ally of freedom and property. The more I’ve studied this and the more I’ve thought about it, the more I think that common law is the distinguishing characteristic of Anglosphere liberty. How it came about, I’ll never know. It was a providential thing.
Howard: I’m just going to add one comment. I like this interplay between the American and English traditions. We’re so often ahistorical in this country. I know most people that teach Marbury v. Madison and American constitutional law—that was where it begins in classes—start in 1803, as if nothing had happened before, as if Marbury had appeared from the brow of Zeus, as if Chief Justice John Marshall had just made it up. It actually builds on things that he thought were fairly obvious. He thought he was simply articulating something that was surely implicit in the constitutional design.
If you had any advice to give to those whom you know on American constitutional law faculties, ask them to do a little constitutional history. Talk about the sort of things we’ve tried to talk about today. Talk about Magna Carta, the Petition of Right, the English Bill of Rights, the American state constitutions. Finally, you arrive at Marbury.
Turning to something that has not come up yet, there was a great “might have been” in English history that actually affected America. That was the so-called Agreement of the People, 1649. The rank and file of Cromwell’s Army proposed this document. It would have been a constitution. It would have actually swept aside the House of Lords and the Crown. It would have created a republican form of government with a supremacy clause, because it provided that laws inconsistent with the Agreement of the People would be null and void. As it happened, that Agreement of the People was never adopted in England, so it simply passed into the pages of history.
But it influenced people on this side of the Atlantic: William Penn, for example, who wrote the Fundamental Laws of West New Jersey and later the Fundamental Charter of Pennsylvania. Incorporated in that West New Jersey document is the same provision that you would have found in the Agreement of the People. So the idea of constitutional supremacy, the notion that there are norms over and above what even legislatures can do was already taking root in 17th-century America.
Question: It seems to me there’s an interesting comparison between British and American constitutionalism. Both countries started with essentially an unwritten constitution. In England 800 years ago, we then had Magna Carta that guaranteed the values of the unwritten constitution, and Britain since then has never codified a constitution the same way we have. We started with the same constitutional traditions that Britain had. The same guarantees were given to all the colonists. We then formed our own constitution. But we have added judicial review on top of it. England has parliamentary supremacy. We have, you could say, judicial supremacy in that regard, at least it’s been accepted in that way by a great many people. To what extent is that an inevitable development of constitutionalism, that the written document itself can never serve as the final resting place of whatever guarantees it hopes to give to the people it governs.
Hannan: Well, judicial supremacy is a fact under any system however you design it. In a sermon preached before his king in the 18th century, Bishop Benjamin Hoadly of Winchester said, “He who is the final interpreter of the law, may truly be called the law-giver, not him who first wrote or spake it.” There’s no way around that. Somebody’s got to be the ultimate referee, and that opens the door to the problem that we have on both sides of the Atlantic, which is judges ruling on the basis of what they would like the law to say rather than what it, in fact, says. There are ways you can constrain that power. Diffusing your jurisdiction among different states is a very good constraint on it, but there’s nothing you can do about totally stopping it.
You describe our model as being one of parliamentary supremacy. And it was. Even in the early 20th century, it was functioning as such. I wonder whether parliamentary supremacy can really work now because politics becomes professionalized. In a parliamentary system like ours, as long as the prime minister is also the leader of the biggest party, he effectively controls Parliament. It ceases to exercise any proper restraint on executive power. So we now have in the U.K. the worst of all worlds in the sense that Parliament is no longer a proper check on ministerial authority. But we have no written constitution either, so prime ministers can do things that they just couldn’t get away with in any other system. When Tony Blair changed how the House of Lords was made up, he could do it on a whim. As long as he had a majority in the House of Commons, he could do it.
Imagine if President Obama decided he wanted to change the Senate, and he wanted to be able to appoint 50 percent of the Senators. There would be a complicated process where he’d have to get two-thirds of the states to agree to that. Similarly in Germany and France, you couldn’t just do that. But by a quirk of history, the British Prime Minister has inherited under Crown Prerogative the powers that were exercised by an 18th-century monarch. We now need to look at ways of constraining that. Since we now have a Supreme Court and judicial activism, we’ve got all the disagreeable features of having a written constitution. We might as well get the protection against executive power that should come with it.
Howard: When I was traveling in England early this summer giving lectures on Magna Carta, the question would come up: Professor Howard, should the U.K. have a written constitution? Well, I had to say that I’m an American. It’s not my job to come over here and give advice on whether you should have a written constitution or not. I did add, though, that if you’re going to have one, I’d be glad to help out.
Hannan: Imagine if you were drawing it up now. You were very lucky to draw up your constitution at the moment when in the English language there was maximum emphasis on the rights of the individual. Imagine if you were doing it today.
Howard: I think that’s quite right. There are historical moments, and in this country, we were incredibly lucky to have the kind of people who were at Philadelphia. It was in a sense elitist, but we were purportedly a democratic country. Sometimes one is asked should there be a second constitutional convention? This makes my blood run cold, frankly. It’s not that we don’t have 55 people just as smart as the ones who were at Philadelphia, but they’re not the ones who would be there. So I would say no to a convention.
But I don’t predict myself that there will be a written constitution for the U.K., certainly not in our lifetime. It’s interesting to think about the reasons that the debate has now surfaced the way it has. One hears more about it, at least in the circles I was moving in, than one used to hear. One is Scottish devolution, the rather impetuous promise made by David Cameron and others on the eve of the referendum last September that if the Scots voted no, then they would be given maximum devolution. The more devolution, the closer you are to formal federalism. You instinctively will have constitutional questions of the kind our Supreme Court faced in the 19th century.
Secondly, you have the Human Rights Act of 1998, which instructs English judges that if acts of Parliament are incompatible with the European Convention, they can issue a declaration of incompatibility. It’s not judicial review. It doesn’t strike down the act, but it says you have a political, not legal, obligation to bring the U.K. law into conformity with European norms.
You have a more diverse population. The homogeneity that the British people seem to have enjoyed or certainly were thought to have enjoyed a century ago is now changing. There are more discrimination problems.
There’s a Supreme Court. I once had lunch with a member of the present court. I said surely the fact that you’re called a Supreme Court, won’t you start thinking like a Supreme Court? Well, he didn’t argue the point. So there’s a lot going on over there that I think obliges people in the United Kingdom to revisit some of the questions that we have had so much to say about in this country.
Question: Of the first 11 provisions of Magna Carta, two of them expressly dealt with Jews and limits on the payment of debts to Jews. How does that fit in with this grand story of human liberty?
Hannan: David Rubenstein, who bought the copy of Magna Carta that’s now hanging in the National Archives, was very amused by the fact that these clauses were taken out by the 1297 edition for a rather shameful reason, which is there were no Jews in England by then. Although this actually ended paradoxically having not a bad consequence, which Paul Johnson adumbrates in his A History of the Jews. He makes the argument that prior to the settlement of North America, England was the best place to practice if you were Jewish. The reason for this, paradoxically, is because at a time when in the rest of Europe laws were drawn up under ecclesiastical courts, at a time when church courts claimed no jurisdiction over non-Christians, Jews in continental Europe were placed in a separate legal category because that was how ecclesiastical law worked, which of course opened the door to centuries of discrimination and maltreatment.
When Jews returned to England under Cromwell, there was no separate legal category. There were some relatively mild disabilities that were faced by all non-Anglicans that meant an English Jew in the late 17th century or 18th century was in exactly the same legal category as an English Baptist or an English Methodist or any other non–Church of England member until all such restrictions were lifted in the early 19th century at a time when the Spanish Inquisition was still functioning.
There was a happy long-term consequence of this. It has given the English-speaking peoples a philosemitic tradition that you just don’t find in the continent, from Cromwell to Churchill, from Daniel Deronda to the sponsoring of a Jewish state. It has something to do with having the same enemies, not least those continental autocrats of left and right who attacked Anglo–Saxon civilization in exactly the same language that they attacked Jewish culture as being materialistic and individualistic and not concerned with faith and honor and so on. I like the “nation of shopkeepers” idea. What would you rather have? A nation of trade unionists or a nation of generals?
So, even out of bad things, good things can sometimes follow. It’s a sad question to be raising now in a way. You have another phase of Jewish emigration from continental Europe. George Steiner made the argument after the war that in losing its Jewish population, Europe had lost its soul. It’s difficult nowadays to recall the intellectual climate in large parts of continental Europe where music, mathematics, and physics were so dependent on Jewish practitioners and writers who spoke German that the removal of that population meant, effectively, an extirpation of civilization. Some of those parts of Europe have been “recolonized.” It’s a terrifying thing to see Jewish populations from France, Belgium, and other countries feeling unsafe again. But we can partly console ourselves with the thought that not for the first time, people of Jewish faith are finding refuge in English-speaking countries.
Question: I’ve read with great interest your having pointed out that John Wycliffe, who first translated the Bible into the common English language in 1374, said that this Bible is for the government of the people, by the people, for the people—words that we thought Lincoln spoke for the first time. But translating the Bible into a common language didn’t go over well with the papacy, and I understand that Magna Carta didn’t either—that the papacy immediately decreed it null and void because it tended to challenge the hierarchical Roman view of the world and governmental structure. Has Rome come around?
Hannan: You’re right that Wycliffe was very unpopular to the extent that 40 years after he died, the Holy See had his remains dug up, his bones ground into powder, and cast into the river. That was the extent to which they regarded him as a heretic. So I think I’m on safe ground saying that he was unpopular in those days. Of course, Victorian historians loved the fact that the papacy of the time had opposed Magna Carta. It fed their view that the Reformation was part of the English exceptionalist story.
This kind of ties back to the last question. It’s often the case when you look at Magna Carta for the first time that you are surprised by how pedestrian or irrelevant a lot of the clauses seem. If you were expecting the same kind of high-flown phrases about liberty that you find in the Bill of Rights or in your Constitution, you are disappointed. Quite apart from terms on which you can borrow money from Jews, there’s a lot of stuff about fish traps in the Thames and about the terms on which daughters can inherit. Yet actually what’s behind all of these things is a concern for property. The inheritance rights of the daughter, even the fish traps, which were about access to waterways by merchants who were being taxed punitively by the people who purported to have the fish traps—all of these things are really about free use of your possessions.
That phrase that trips so easily off the tongue of the American Founders, liberty and property, as though it were a single concept—that union is there in Magna Carta. The understanding is there that if you have the right to enjoy your possessions, if someone who is higher up the hierarchy than you are can’t take them away from you arbitrarily, then you are a free person. That really is the whole basis of Anglosphere society today. It established something that is still very unusual outside Anglosphere societies, which is the idea of total, uninterruptable possession by a single individual that lasts even after death. We are pretty unique, we common law societies, in being able to will our possessions to whom we like without the state stepping in and ordering what we must do with it. Incidentally, in this sense, if you’re taking the common law as being the defining characteristic of Anglosphere societies, I think Israel nudges in as a member.
Howard: This question raises for me the suggestion that it’s hard to understand constitutional documents, in particular Magna Carta, without thinking a little bit about the interests of the people who were behind the language. It was, after all, a negotiated settlement, and people didn’t just sit down in a quiet room and write it. It was basically a peace treaty. It failed as a peace treaty, but it was an effort to sort of bring a civil war to an end.
As you track through the language, you realize it came into the document because different people wanted it in. Early in the document, you have the statement, “The English Church will be free.” Now, this is not the First Amendment. This is not separation of church and state. But it’s a way of English clerics saying we don’t want to be under the thumb of Rome.
You have other provisions that are clearly there because they benefit the City of London, which took the side of the barons. As you go through the fish weirs and that sort of thing, merchants can freely enter and leave the country sort of like the Commerce Clause of the U.S. Constitution. A lot of the provisions, of course, were the barons’ interest in keeping the King from displacing their traditional rights to line his own pockets by way of revenues that he needed. So it was a cluster of interests that came together.
A hundred years ago, there were doubters that said the U.S. Constitution is nothing but a collection of what planters and merchants wanted. It really has nothing to do with the people. There’s a kind of a mythology argument about Magna Carta that it’s really a bunch of selfish barons looking out for themselves. Well, no doubt they were. There’s no doubt about that. But there is language in the charter at certain points where they reference the rights of the free people of England. Now one is not sure how many people could be called free people at that time, but it was more than just the barons. The barons, for example, were enjoined in Magna Carta to see that their tenants in turn would enjoy the rights that they were themselves to enjoy from the king.
So there are suggestions here and there in Magna Carta that it has more universal aspirations and principles. It invites interpretation—the way our Constitution does. You take a phrase like “due process of law,” and it’s not a crystal, transparent thing that you can hold up to the light. It has to have some meaning that you have to tease out of it. That’s true of Magna Carta as well.
Hannan: On the eve of the 800th anniversary, I looked at the collection of essays that had been published for the 700th anniversary by, I suppose, the equivalent of some TV historians of their day, and they were obviously famous at the time. We now don’t recognize any of their names. But one of them ended with a lovely line which was, “The barons did more than they knew and more, perhaps, than they would have done had they known.”—Daniel Hannan is a British Member of the European Parliament for the Conservative Party and author of Inventing Freedom: How the English-Speaking Peoples Made the Modern World. A. E. Dick Howard is White Burkett Miller Professor of Law and Public Affairs at the University of Virginia School of Law. He is the author of The Road from Runnymede: Magna Carta and Constitutionalism in America.