Magna Carta and the Constitution – History
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Magna Carta and the Constitution – History

August 26, 2019

This film is a project of the Leonore
Annenberg Institute for Civics of the Annenberg Public Policy Center of the
University of Pennsylvania in partnership with the Annenberg
Foundation Trust at Sunnylands. “Citizenship is every person’s highest
calling.” Okay so how many of you already know
this story the King starts acting like a tyrant, taxing people without giving them
any say in how they’re governed, and throwing them in jail without fair
trials. Some of the most important men of the land come together fight back and
declare that they won’t be ruled arbitrarily by the king, but by laws that
govern everyone. Now if you were thinking of the framers and the founding of the
United States, you’re close. You were only off by about five hundred sixty years, an
ocean, and a king because the event is actually the approval of the original
Magna Carta which began in 1215, on this very field just outside of London. And
the King John, not George, continued to reign because he agreed to play by the
rules of law. Magna Carta matters because it set forth basic principle 800 years ago. Associate Justice of the United States Supreme Court Stephen
G Breyer. Among other things, it said that the king who is the most powerful person
in England, could not imprison a person, and he wouldn’t take their property and
he wouldn’t hurt them, except according to law. Associate Justice of the United
States Supreme Court Anthony Kennedy. Magna Carta said the law comes from the
people to the king. This was revolutionary, and that idea that we all
live according to laws and that not even a king is above them, that began with
Magna Carta. The Magna Carta is the starting point for the English tradition
of the rule of law. Magna Carta is an assertion really of the rule of law, the
idea that there is a set of limits on government power. That’s a very basic,
very fundamental idea. And that idea became a fundamental principle in
America. King John might just be one of the
world’s most famous tyrants. Think of Robin Hood, that was King John. That was
the John that we’re talking about in 1215 Magna Carta times. You shall hang by
your clumsy thumbs if you cut me again. King John’s behavior was if he saw you
had some money he would think “well why shouldn’t I have it?” He really was the
worst king in English history by quite a long way. He’d taken the taxes, he demanded
the money that went with making war overseas, but he’d been defeated in his
wars in France. And at home, he taken taxes probably at a higher level than
any King in the past. Well the Barons didn’t like that. Why
were the Barons upset with King John? It boils down to with money. He was abusing
them with taxes, taking their land. Barons were fed up with King John taking their
money and property whenever he felt like it. They united, formed an army, and
threatened the king, “either start acting like a good king and protect us, or we’ll
find a new king who will.” It truly is the start of some notion that the king does
not have divine right and absolute power. The paper said he wouldn’t put them in
jail and he wouldn’t take their property and he wouldn’t hurt them except
according to law. Now the barons didn’t like King John and they weren’t going to
take him at his word, so they made sure the agreement was written down. 63
different clauses all in Latin and it was 1215 people, their paper was
sheepskin. To fit this document onto one piece of parchment, onto one piece of
animal skin, sheepskin, you’ve got to merge all that and you would have
writing very, very small writing on what is effectively the back of a sheep. This
must be the only great constitutional document in world history that is
limited in its scope by the size of a medieval sheep.
it became known as Magna Carta, which literally means the Great Charter. But
this is not a “We the People” moment. The Barons were perfectly happy to keep the
king. The Barons wanted a say in power, they wanted a share of power. This first
Magna Carta is full of little things that only a baron would want. It’s got
some very strange things it. Clause 33 forbids the building
of fish-weirs on the River Thames and the River Medway. What on earth have fish weirs
got to do with yours or my liberties? The idea that you couldn’t take corn or wood
without paying for it became the government cannot take property without
just compensation. So narrow clauses that were written were focused on a
particular problem but they had a meaning that was elaborated over time
that became greater than the writing. Then there’s this, “no free man shall be
arrested or imprisoned or disseized,” that means having his property taken
away, “or outlawed or exiled or in any way victimized,” this is King John speaking,
“neither will we attack him or send anyone to attack him except by the
lawful judgment of his peers or by the law of the land.” That was a rather
radical idea, that in other words, the king who up until that moment on this
field ruled as if he had powers given to him by God, the king was agreeing to have
his power limited by the law of the land. Now what is the law of the land? Magna
Carta doesn’t specify what the law of the land is but it does lead to the
expectation that there is something called law that can be recognized that
is customary that other people, justices and judges, can actually impose. And this
is how way back in 1215, this document set in motion an idea that informed the
way Americans built their own constitution and live today. See here,
rule of law means that the law, not any one person, but the law is ultimately in
charge. You obey the laws as they’re written and
everyone has to obey the laws equally, no one is above the law. The idea behind the
rule of law is simply it’s the law that is the ruler we don’t have a person
who’s arbitrary will tells us what’s permissible and what’s not. We have a
system of laws. Arbitrary behavior. Do whatever you want behavior. Wouldn’t it
be nice if what’s mine is mine and what’s yours is mine too? And this phrase
right here, “law of the land,” came to be the idea we know today as “due process.”
They cannot take, the government, your liberty. They cannot take your property
except according to fair law. Due process means fair, not just law, but fair law in
a country governed by the rule of law. Due process is the pathway we take to
get to a place where we can say, “yes the rule of law was honored here.” You can’t
have one without the other. Pretty much the minute the King and the
barons left the field, King John, living up to the reputation of a worst King
ever, went straight to the Pope and had Magna Carta, annulled, canceled. Magna
Carta was successful for about ten weeks. But a funny thing happened on the way to
constitutional democracy, turns out it’s really hard to annul a good idea once
it’s been written down. After John died, future Kings agreed to be bound by Magna
Carta, at first to keep their peace with the Barons but gradually it became a
tool for all the people to remind the king he wasn’t above the law. So it
became part of the customary law of England. In a sense the issuing of Magna
Carta is a statement of power. It’s a statement that there’s enough power in
the people to make certain that the king will agree to it. That gained immediate
acceptance from the people. If people insisted that the successors to King
John sign on this Magna Carta. This continued for hundreds of years, was
nearly forgotten then, Magna Carta was brought back to life, just as Britain was
forming colonies in the New World by Sir Edward Coke. Edward Coke was one of the
most important jurists in British history.
Edward Coke, even though it looks like it’s spelled coke it’s cook. As Attorney
General he prosecuted Sir Walter Raleigh and was eventually promoted to Chief
Justice of the Court of Common Pleas, where he became known as a champion of
common law. The British constitution is not written it’s this collection of
precedents that the common law and statute law. it’s what’s accumulated. Coke
argues that the English people have fundamental rights under an ancient
constitution, rights that no King can take away. Coke says these constitutional
rights are grounded in Magna Carta and safeguarded by the elected
representatives of the people: Parliament. Edward Coke is tremendously important in
the invention of this idea that there was this ancient constitution that
defended the liberties of Englishmen as freeborn, free people and Parliament is
the thing that protects the freeborn English against these potentially
tyrannical Kings. Coke wants a world where there are things the crown is not
allowed to do. That’s our modern notion of
constitutionalism, but because the British don’t have a written
constitution, that’s hard to point to. He really is fundamental to the rediscovery
of Magna Carta. Coke said the king is under no man but he’s under God and law
Lex facit regem:the law makes the king. He
argued that Magna Carta limited the King’s power, that because of Magna Carta,
all free Englishmen not just barons had rights a king had to respect. And with
that argument Coke went on to write British law asserting rights that are
very familiar to Americans. Sir Edward Coke is one of Britain’s champions of
the rule of law and due process. And he argued that those ideas came from
Magna Carta. A lot of our understanding of the areas where
government ought to be limited come out of this early battle in the 17th century
with the Crown in England. And in a world where many people were beginning to
think that Magna Carta was part of those laws and liberties, it would have meant
that in essence Magna Carta sailed with the colonists as they sailed across the
Atlantic. Remember they called it the New World. Most of the people leaving England
were determined to establish new lives and new ways of doing things. They saw
themselves as loyal subjects of the Crown but they hoped for enough
independence an ocean away to practice different religions and economic
independence so they could have more control over their lives. Edward Coke
actually helps write the Charter of Virginia and Magna Carta is cited in
colonial laws and when King George tramples the rights of the colonists,
they look to Magna Carta. The American framers certainly would have used sir
wood Coke’s legal texts as part of their legal education and so they would have
been influenced by that thought as well. Coke’s writings later became of immense
importance for the colonies. Magna Carta becomes a rallying point for the
colonists. It becomes an icon, it’s reproduced on currency, it’s put up there
on the state capitol buildings across America. So, as King George starts to
impose new taxes on the colonists, imprison them without fair trials, and
invade their homes for no reason, the colonists begin to realize that maybe
the way they’re governing themselves is what they really wanted all along, that
maybe they should stop claiming English rights and write their own. The idea that
a king doesn’t have absolute power turns into we don’t need a king we live by the
laws that we make ourselves. Magna Carta is the starting point of an idea that
the Americans come to believe they are the fruition of it. I mean they’re very
proud that they have gone one step further than the British constitution,
that people are sovereign. If you look at the complaints against King George that
are set out in the Declaration of Independence, there are some that relate
to just bad things that King George has done to people, but the end goal of the
American Revolution is really what’s set out in the Declaration of Independence.
It’s the right to govern ourselves. So when Americans win that right by winning
a long and bloody war, the framers draw on the Old English law, but they invent
something new. They will govern themselves. So limiting the power of a
king becomes limiting the power of our own government. Probably the biggest
conceptual break that the American Constitution makes from the existing
British system is that no single branch of government has the ultimate authority.
Our Constitution sets itself up as the supreme authority in our system of
government. The framers don’t discuss Magna Carta as they write the
Constitution, but they still borrow from it. Economic protections like no taxation
without representation, even “standard weights and measures,” a phrase taken
directly from the original Magna Carta. And some really important ideas that
evolved from centuries of Magna Carta and Coke’s interpretation of it become
fundamental rights written into our Constitution. Fair trials, habeas corpus,
and an independent judiciary to protect those rights. And the connection is even
stronger in the Bill of Rights. You see it’s influence more with the
Bill of Rights, where we get these limits on the government that has been created
because the idea is here’s this government, perhaps it’s going to be
dangerous, perhaps it has too much power we want to put down in writing certain
limits and we’re going to have an independent judiciary that will enforce
those limits. The phrase in Magna Carta article 39 is “law of the land,” within
just about 50 years some commentators were calling it “due process” and so it
became a synonym. The language of the Fifth Amendment, “due process” comes from
all of those colonial charters were heavily inspired by Magna Carta.
It’s the foundation for jury trials and criminal procedures and the rule of law
and it’s written down for everyone to see. In 1215, Magna Carta was written and
then sealed. Declaration of Independence and the Constitution and the Bill of
Rights, they’re all written documents and that is a very, very strong history at
least from the United States of America, to have these written documents that
symbolize our rights. And in the case of our Constitution, protects those rights.
The fact that it’s written means that a lot of people who don’t necessarily have
the same upbringing and cultural differences can all refer to the same
thing so people all over America can hold up this document. And they do. And
when the rule of law broke down as it did during the Civil War, the
Constitution had to be amended to make sure fundamental rights like due process
were protected equally and for everyone. So due process actually appears in the
Constitution twice. You say, “why twice? Because it’s so important we want to
write it down twice?” Well when they wrote this document, the Constitution, they were
creating the federal government. With the Bill of Rights the framers wanted to
limit the power of the new national government so the Fifth Amendment
protects against federal power. After the Civil War to protect the rights of four
million new citizens, former slaves, Congress expanded due process and put it
in the Fourteenth Amendment, this time to protect those rights against the states.
And that’s why that 14th amendment says, “no state, no State shall deprive any
person of life, liberty, or property, without due process of law; nor shall any
state deny a person equal protection of the law,” so now say it twice. Feds
you can’t infringe our Liberty. You must follow a rule of law.
And states echoes for you too. 800 years ago barons and a king met on this field
and agreed, for the first time, that a king is not above the law and has to
respect certain rights of his subjects. They wrote it down, and Americans took
those ideas expanded them and made them bedrock principles that we live by today.
No one is above the law and we all have rights our government must protect. The
best way to see the Magna Carta is the first time that efforts were made to
constrain and restrict absolute power. It’s a sort of starting point that leads
all the way to “We the People.”

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