Never in the field of human history has there been a clearer illustration of the maxim “Culture matters” than that which has been provided by the English-speaking peoples and their relationship with Magna Carta Libertatum. On June 15 of this year, we celebrated the 800th anniversary of the signing of the document, and all of the usual platitudes came out in force. The charter, Prime Minister David Cameron suggested in England, had “shaped the world for the best part of a millennium, helping to promote arguments for justice and for freedom” and to codify “the belief that there should be something called the rule of law, that there shouldn’t be imprisonment without trial.” A few feet away sat the queen of England, graciously nodding along. The principles contained within the treaty, her majesty observed without a trace of irony, were “significant and enduring.”
Watching from America, I could not help but feel a touch of pride. And yet I also couldn’t avoid reflecting that — uncomfortable as this might be for Cameron and his ilk to acknowledge — the values for which Magna Carta is supposed to stand are in much better shape in the United States than abroad. “Parchment barriers,” James Madison noted acidly, are often little use when set against “the encroaching spirit of power.” In Britain of late, that power has encroached mightily, and, in so doing, it has erased many of liberty’s red lines. One might ask, What good is our piece of paper now?
Indeed, one might ask what good it ever did, for despite the deeply held convictions of 16th- and 17th-century British Whigs, despite the easy platitudes of a David Cameron or a Queen Elizabeth, and despite the mawkish display of respect that has marked these anniversary celebrations, Magna Carta was neither a hard-and-fast protector of individual liberties nor the last remaining vestige of an ancient English constitution. Instead, it was a narrow guarantee of redress and of immunity that was demanded by and applied solely to those rebellious members of the nobility who were unhappy with the job that King John was doing and who wanted a parchment contract to which they might appeal should their influence be curtailed. The central ideological implication of the document — that kings must consent to see their power limited if they wish to remain in place — is indeed a radical one; perhaps even, as Lord Alfred Denning put it, “the foundation of the freedom of the individual against the arbitrary authority of the despot.” But foundations do not the whole house make, and one does not arrive at one’s destination simply by leaving for it. Freedom is an attitude, not a piece of paper, and the mists of time are powerful only when those staring into them do so reverently.
Which is to say that, attractive as their characterizations might be as historical shorthand, the romanticized vision of Magna Carta that was crystalized in England by Sir Edward Coke and in America by William Penn is spectacularly wide of the mark. Far from being a precipitous shot that was heard round the world, Magna Carta’s principal utility has in fact been as a seed from which other virtuous plants have been able to grow. Pace Cameron and Co., then, Magna Carta’s value lies not in what it incorporated into statute but in how it has been perceived throughout the ages — even, indeed especially, when it has been misunderstood.
The protracted fight against the divine right of kings raged in England throughout the latter days of the Stuart era, when little was more potent than the erroneous belief that both James I and Charles I were violating not only traditions of some centuries but principles that had obtained in one form or another since time immemorial. Being smart sorts, both James I and Charles I recognized the danger that this misunderstanding brought with it and sought to outlaw any mention of Magna Carta. That the English parliament now rules supreme over the English monarchy is in some sense a testament to their failure. Ideas, as the old saying goes, have consequences.
In the United States, the consequences of this ersatz conception have been even more radical. Because the Declaration of Independence and the Constitution of the United States represent such precise articulations of principle, it can today seem peculiar to see as inchoate and ostensibly expedient a document as Magna Carta put on such a glorious pedestal. What, one might wonder, is this confusing antique doing hanging adjacent to America’s founding documents in the Library of Congress? The simple answer is that it is taking a somewhat undeserved victory lap for having helped to foster a nation of rebels. Daniel Hannan, a member of the European Parliament, has noted that the pioneers of colonial British America left Britain “when the mania for Magna Carta was at its height.” Over time, that “mania” spread and metastasized, and was left to fester by a British establishment that was content to leave America to Burke’s “salutary neglect.” Once again, the false idea did its damage to the powerful.
Because the constitutional indignities that the American revolutionaries eventually came to suffer seem so trivial when compared with the tyrannies of the 20th century, it has been tempting for modern storytellers to impute to the imperial British authorities a set of motivations and behaviors that they simply would not have recognized. It is thus that Mel Gibson has been able to get away with borrowing Nazi war crimes for his movie The Patriot, and that Paul Revere’s famous cry has been so seamlessly transmuted from “The regulars are coming!” to the nonsensical “The British are coming!” The truth is a good deal more complex. Indeed, one can reasonably argue that the American Revolution was not a revolution in the classical sense of that word but rather a restoration that was predicated on the desire to resuscitate a set of ancient principles that had never actually existed in their presumed form.
The role that Magna Carta played in this process was incalculable. Convinced that they were being denied their venerable English rights, the colonial dissenters’ initial messages were filled not with a Jacobinesque disdain for the past but with warm expressions of kinship and with appeals to shared ideals. When, on November 3, 1764, the Massachusetts House of Representatives wrote to the House of Commons to complain about the Sugar Act, the signatories protested that they were being deprived of their established “English liberties.” Four years later, in 1768, the Resolutions of the Boston Town Meeting would proclaim all attendees to be “British subjects by birthright” and therefore entitled to all of the “rights, liberties, and privileges . . . and immunities” enjoyed by any “free and natural subject” who was “born within the realm of England.” Protesting the Stamp Act in 1773, the New York Sons of Liberty claimed the “undoubted right of Englishmen” that their “ancestors had handed down” to them across the ages. A year later, as separation seemed increasingly likely, the Association of the Virginia Convention convened with one stated aim: to “preserve the rights and liberties in British America,” and in Philadelphia the first Continental Congress considered “statutes impolitic, unjust and cruel,” but — most crucially — “unconstitutional.”
As one might expect, the Glorious Revolution and the English Bill of Rights weighed heavily in the colonists’ assertions of right. And yet to delve into their contemporary missives is to discover a great deal more than appeals to existing law. When Patrick Henry took to the floor of the Virginia Ratifying Convention in 1788, he made sure to praise the “glorious forefathers of Great Britain” who “made liberty the foundation of every thing.” In so doing, Henry was recruiting to his side not only Henry Sydney and the other “Immortal” six but a long line of men who had aspired to check the power of the monarchy and to declare certain rights unalienable. It is hard not to detect in his words an echo of The American Claim of Rights (1774), a pamphlet in which Chief Justice William Drayton made the claim that, simply by virtue of their connection to the British Isles, the colonists were “entitled to the common law of England formed by their common ancestors; and to all and singular the benefits, rights, liberties and claims specified in Magna Charta, in the petition of Rights, in the Bill of Rights, and in the Act of Settlement.”
Some seed. Some imagination.