In the debate between those who consider Magna Carta to be a tremendous step in the advancement of liberty and those who don’t, count me among those who do.
For me, two things stand out most about Magna Carta.
First, it was the first time in history that government (i.e. the king) acknowledged that its powers over people are limited in nature rather than omnipotent.
That was a shocking notion to people all over the world. For centuries, it was just an accepted fact that the government was sovereign and the people were subordinate. No one questioned the idea that the king could do whatever he wanted to people.
He could seize people, incarcerate them, torture them, and execute them for any reason or no reason. He could seize their money, houses, and businesses whenever he wanted. He could dictate what they could and could not read. He could tell them when to go to church or prohibit them from going to church. He could control and regulate even the most minute of their economic activities.
No one questioned that type of system. That’s because the king was the king. He could do whatever he wanted. The citizens, being subordinate, were the serfs. Their lives and their properties were viewed as privileges and therefore unconditionally subject to the king’s dictates.
And then along came a group of English barons who introduced one of the most revolutionary ideas in history — that the king’s powers over people are not omnipotent — that is, that there are limits to the power of the king. Today, most Americans take that notion for granted. Not back in 1215. It was a notion that shocked the world.
Critics of Magna Carta have pointed out that the barons who forced King John to accept Magna Carta were not libertarians. They say that it wasn’t a document that called for democracy. They say it didn’t protect the rights of the poor. They say that it didn’t guarantee trial by jury. They say that it was breached soon after it was issued. Heck, Magna Carta didn’t even contain a provision against global warming.
In my opinion, the critics are missing the point. The point is that in the advance toward liberty, a first step was necessary. By implanting into the minds of mankind the idea that people have rights that cannot be infringed upon by government, Magna Carta took the first step toward the free society.
That idea — that there are limits on the power of government over the lives and property of the people — would ultimately find its way into Thomas Jefferson’s Declaration of Independence, which contained one of the most radical statements in history:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
It is true that Magna Carta didn’t lead immediately to the free society but why would anyone have expected it to? If only freedom were so easy to achieve. The great advances toward freedom have come in fits and starts. Ten steps forward and five steps backwards. Sometimes vice versa. But Magna Carta started the process.
The second reason I’m in the pro-Magna Carta camp is that it began the process that would lead to ever-greater procedural rights and guarantees that have limited the power of government to do bad things to people, such as trial by jury, right to confront adverse witnesses, right to counsel, right to speedy trial, the presumption of innocence, proof beyond a reasonable doubt, right to bail, and other procedural rights and guarantees that ultimately found their way into the Bill of Rights.
Those procedural rights and guarantees didn’t just appear out of nowhere. They were carved out during centuries of British citizen resistance to the tyranny of their own government. But their root is Magna Carta, the document that first put the idea of limiting the powers of government into the minds of people.
During the first two years of FFF’s operation, we reprinted two articles that are timeless in nature. I cannot recommend them more highly. They are as relevant today as when they were originally published.
The first article is “The Roots of Limited Government” by Alan Barth, who served on the editorial board of the Washington Post for thirty years. The article, which we published in the February 1991 issue of our monthly journal Future of Freedom (then called Freedom Daily), is actually an excerpt from a longer essay that appeared in Barth’s 1984 book The Rights of Free Men. Consider Barth’s powerful words:
Our liberty is not Caesar’s. It is a blessing we have received from God himself. It is what we are born to. To lay this down at Caesar’s feet, which we derive not from him, which we are not beholden to him for, were an unworthy action, and a degrading of our very nature.
These ideas have ancient and diverse origins, of course. The sense of man’s worth as an individual child of God finds expression in the Old Testament and is the central premise of Jewish thought and theology. It finds expression equally in the New Testament as the keystone of Christianity. And its sources are no less discernible in classical Greece and Rome.
But for the political implementation of these ideas, one must look to English history in particular. There was a foreshadowing of them in Magna Carta — although one could hardly call Magna Carta a democratic document. Nevertheless it did provide that “No free man shall be taken or imprisoned or dispossessed or outlawed or banished, or in any way destroyed … except by the legal judgment of his peers or by the law of the land.”
It was in the first half of the seventeenth century, however, that the idea of individual liberty and the concept of limited government as the indispensable condition of liberty came into full focus. This was perhaps the most tumultuous and teeming half-century in English history…. It was in the new world, however, that the vision [of limited government] became a political reality. [The] Constitution erected a fortification for freedom. It furnished safeguards against ourselves, against our passions and extravagances. It set forth in a Bill of Rights those “unalienable rights” which no Congress, no government, no majority of the people could invade or violate.
The clause in Magna Carta to which Barth refers — “the law of the land” — would ultimately evolve into the phrase “due process of law,” one of the most powerful protections against tyranny ever devised by man. Notice that that clause is found in both the Fifth Amendment and the Fourteenth Amendment.
Why is due process so important? Because it prohibits the government from seizing a person, incarcerating him, torturing him, and executing him without providing him with two critically important things: (1) formal notice of the specific crime the government is charging him with and (2) an opportunity to be heard. It’s that dual concept of due process that encompasses such procedural guarantees as grand-jury indictments, a trial by which evidence against the accused must be competent and relevant, the right to confront adverse witnesses (i.e., no hearsay), the right to be represented by counsel, and to be tried by a jury of one’s peers rather than a judge or military tribunal (like at the military’s judicial system at Guantanamo Bay).
The other article I recommend, which we published in the July 1990 issue of our monthly journal is “The Bill of Rights” by former U.S. Supreme Court Justice Hugo L. Black. Consider the opening paragraph to the piece:
Today most Americans seem to have forgotten the ancient evils which forced their ancestors to flee to this new country and to form a government stripped of old powers used to oppress them. But the Americans who supported the Revolution and the adoption of our Constitution knew firsthand the dangers of tyrannical governments. They were familiar with the long existing practice of English persecutions of people wholly because of their religious or political beliefs. They knew that many accused of such offenses had stood, helpless to defend themselves, before biased legislators and judges.
Two days ago, an article on the debate over Magna Carta in the New York Times quotes Noah Feldman, a professor at Harvard Law School:
“It’s a mistake to think that a document’s importance can be measured solely by the immediate context in which it’s produced,” said Noah Feldman, a professor at Harvard Law School. Magna Carta’s resonance, he continued, “doesn’t rest on what King John and those particular barons were doing at that particular time, but on the length of the legacy in using and interpreting and holding up this document as a banner for the rule of law.” Scholars who say that the claims for Magna Carta are exaggerated, he added, are merely following academic fashion. “Among historians it’s the cool thing to say,” he said.”
I agree with Feldman. Count me among those who are celebrating the 800th anniversary of Magna Carta.