Daily Archives: May 8, 2015

The Magna Carta: On Despotic Monarchs, Great Charters and the Rule of Law

Western Michigan University Cooley Law School Professor Devin Schindler

WMU-Cooley Professor Devin Schindler

So, you are King John of England in the year 1215. You are having a bad year. A very bad year. You have managed to lose half your kingdom to the rapacious French as the result of a series of military blunders. You’ve taxed your people back to the Stone Age to pay for an opulent lifestyle and for your many unsuccessful military campaigns. Your mother hates you, all of your brothers are dead and your family life is maelstrom of dysfunction. Your barons, upon whom you rely for money, men and support, are bordering on open rebellion. The locals are shopping for spikes upon which to impale your head.

You prevail upon the Pope to save you and your kingdom. The Archbishop of Canterbury, Stephen Langston, steps up and acts as an intermediary between you and your disgruntled barons. You ultimately agree to travel to Runnymede, a water meadow located west of London, to sign a settlement agreement in which you promise, among other things, to share power with the barons, lower taxes and to not imprison people contrary to the “law of the land.” Eight hundred years later, the document you signed, known as the Magna Carta, remains one of the defining documents of the American polity.

On May 1, The Grand Rapids Bar Association, in coordination with Western Michigan University-Cooley Law School, celebrated the Magna Carta’s anniversary as part of its annual law day celebration. The highlight of the festivities was a discussion of the continued importance of this revered document by Professor Sally Hadden of Western Michigan University. Professor Hadden is one of the nation’s leading experts in medieval legal history. With both a J.D. and a Ph.D. in History from Harvard, Professor Hadden was able to bring a unique historical and legal perspective on the how the Magna Carta shaped history in general and our nation’s constitutional commitment to self rule, in particular.

WMU Professor Sally Hadden

WMU Professor Sally Hadden

As explained by Professor Hadden, the Magna Carta had little immediate impact. King John quickly repudiated the agreement, gaining the approval of the Pope within months of having signed it to ignore its provisions. Many of its provisions deal with arcane matters of little modern significance, such as inheritances (Provision 5: “Heirs will be married without disparagement”), taxation (Provision 29: “No constable is to compel any Knight to give money for castle guard, if he is willing to perform that guard in his own person”), commerce (Provision 33: “Henceforth all fish-weirs will be …removed from the Thames”) and civil procedure (Provision 44: “men who live outside the forest will not come before our justices of the forest upon a general summons.”).

Four principals embodied by the “Grand Charter” however, place it at both the apex of political theory and in the cornerstone of the American Constitution.

A copy of a 1297 version of Magna Carta is on display during a press viewing at the National Archives March 3, 2008 in Washington, DC.

A copy of a 1297 version of Magna Carta is on display during a press viewing at the National Archives March 3, 2008 in Washington, DC.

First, the Magna Carta guarantees that “(N)o free man will be taken or imprisoned….save by lawful judgment of his peers and the law of the land.” (Provision 39) This, of course, became the foundation of the right to trial by jury.

Second, the Magna Carta guaranteed the right of individuals to travel both throughout England and internationally (Provision 41). In a 1958 case, Kent v. Dulles, the Supreme Court cited the Magna Carta for the proposition that “(t)he right to travel is a part of the ‘liberty’ of which a citizen cannot be deprived without the due process of law of the Fifth Amendment.”

Third is the concept of due process, also embodied in Provision 39. This “law of the land provision” in many ways was the springboard for the Constitutional guarantees of due process, a speedy trial, and representation by counsel. The constitutional guarantees against unreasonable searches and seizures, excessive fines, and cruel and unusual punishment also find common root in the Magna Carta’s promise that no person will be imprisoned “save by….the law of the land.”

Fourth, and finally, the idea of checks on the power of the sovereign through the creation of a representative body; i.e., a Congress, was embodied in the Magna Carta’s creation of group of “advisors” whose consent would be necessary to impose unusual taxes. Hence, in Provision 16, the Magna Carta required the king to “summons” his earls and high barons (among others) to meet at a “fixed place” for a “fixed time” for the purpose of giving their “general consent” before any additional taxes were imposed. This provision, and several others like it, reflected the now well-established principal of self-rule and representative government; a principal which was reflected in the cry of “no taxation without representation” that animated the American revolution.

Much of the Magna Carta has been rendered moot by history. The principals of representative democracy and the rule of law which underlie it, however, remain every bit as vital in 2015 as they were 800 years ago. Perhaps the greatest tribute to the Magna Carta is the fact that it has been cited over 170 times by the Supreme Court as one of our country’s animating documents. Long live the Magna Carta!

Professor Devin Schindler is a frequent commentator on numerous Constitutional and healthcare issues, having been interviewed over 200 times by radio, television, print and internet media sources.  His comments have appeared in Time Magazine, The Huffington Post, The New York Times, The San Francisco Chronicle and numerous local media outlets.  For 15 years, Professor Schindler hosted his own radio program, “The Constitution among Friends” on WGVU public radio. He is a frequent author and has made hundreds of speeches on constitutional law issues and health care compliance. He most recently published articles in the Whittier Law Review, Case Western Reserve’s Health Matrix: Journal of Health-Medicine, and in Quinnipac Universities’ Health Law Journal.

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