When it seemed that conservatism was finally settling into some defined boundaries under the presidency of Donald Trump, however fitfully—into Trump alt-populists, Never Trump former neocons, establishmentarian veterans of the two Bush administrations, expert/reform conservatives, social communitarians, big L libertarians, and a residue of libertarian-conservative fusionists—here comes Anglo-American Toryism as the proper resolution.
The octocentennial of Magna Carta has presented an auspicious occasion for reflecting on exactly what we ought to be celebrating, if anything, about Magna Carta, an ancient document with a tenuous connection to our own time and place. Is Magna Carta the fountainhead of our most cherished rights and liberties? Or is it a document entirely of its own time—an unremarkable set of compromises between King John and a few of his rapacious barons—with next to nothing to say to us today? In this post, I’ll describe the responses of Professor Martin Krygier, one of the more penetrating writers on the…
Samuel Johnson famously said: “That man is little to be envied whose patriotism would not gain force upon the plain of Marathon, or whose piety would not grow warmer among the ruins of Iona.” Last week I thus went to Salisbury Cathedral, which contains one of the four original copies of the Magna Carta. The timing for stirring appropriate emotion too was auspicious. Today is the eight hundredth anniversary of the document’s signing.
Unfortunately, the contemporary setting made enthusiasm for the Magna Carta’s contribution to liberty and the rule of law harder to sustain. Instead of focusing on its history or specific elements of its reception into the English legal system, the Cathedral chose to open its exhibit with a video that portrayed various social movements whose connections with Magna Carta were sometimes obscure. One was absurd: an attack on Israel’s blockade of Gaza. One does not even need to agree with this policy to recognize that empowering Hamas, a theocratic and lawless group that regularly engages in summary executions of people unlikely enough to be under its thumb, hardly advances any ideals of liberty or legality. The video showed more about the ineffectual left-liberalism of today’s Church of England than anything useful about Magna Carta.
In the New York Times today, Tom Ginsburg provided some reasons that whatever the surrounding exhibit, a visitor should not get too excited about Magna Carta.
This year marks the 800th anniversary of Magna Carta, an important landmark in the development of the English common law. His consent dramatically extorted by defiant barons at Runnymede in June of 1215, King John agreed to limits on the power of the crown.
The spectacle of a proud king bending before the will of his subjects fired the imagination of one the greatest guardians of freedom: Sir Winston S. Churchill. Churchill frequently pointed to Magna Carta as the foundation of the British liberties he strove so mightily to defend. Indeed, the medieval charter retained a remarkable inspirational immediacy for Churchill, who was inclined to trace clear lines of descent through the congested and meandering corridors of history.
King Arthur: I am your king!
Woman: Well I didn’t vote for you!
King Arthur: You don’t vote for kings.
Woman: Well how’d you become king then?
— Monty Python and the Holy Grail
In his enviably readable book Inventing Freedom, Daniel Hannan refers to King John of England as “providentially bad.” Most importantly for the cause of English liberty (and by extension American liberty), the “obnoxious” and overbearing behavior of King John resulted in the Magna Carta. Had John been more artful and politically deft he might have aggrandized more power to himself and imposed a number of political innovations on a disgruntled people. But John, being bad, inspired reaction.
A century and a half after the Norman invasion brought to England a new ruling class and an imposed Continental feudal political arrangement, the nobility—who were themselves the offspring of the “bastard” Normans—drew deeply from the older Anglo-Saxon traditions still encoded in the sinews of English order to check the king and produce a crystalized defense of old liberties. In the Magna Carta they drew from the past but also altered the future. Often in reaction we make progress.
During a recent trip to the National Archives, I saw one of the earliest known copies of Magna Carta in existence. And I remembered one of my favorite parts of Magna Carta, the “Law of the Land” clause:
No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.
This pronouncement, that neither life, liberty, nor property can be taken except by the “judgment of his peers or by the law of the land,” is the constitutional predecessor of our Due Process Clause. This also served as a basis for some notion of judicial review. Some argue that this history provides for a substantive component of law, rather than a mere procedural aspect.
In his second response to Sandy Levinson’s call for a new constitutional convention, Michael Greve cast doubt upon the efficacy of such a project given the mess of our fiscal circumstances. Under present conditions, how could we ever simply focus on the structural challenges unencumbered by current political expediencies? In essence, it’s far too late to hope for the degree of detachment and deliberation that would be necessary from any mere collection of mortals. There is another side to this, though, that links, interestingly, to the whole debate about the nature of history and originalism.
I would like to suggest that the Constitution we have, has taken its place alongside other key documents in the western legal tradition, not because it has preserved inviolate a coherent legal and institutional order, but rather because it has served as a cultural Polaris in favor of the presumption of liberty. In this sense, James Stoner’s contention that we are still within the confines of a constitutional system as originally understood, seems altogether too optimistic. Rather, we have returned to something more like the earlier English constitution. Sandy Levinson’s post affords a nice way to conceptualize that issue.