Magna Carta and the Origins of American Constitutionalism | Gordon Wood
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Magna Carta and the Origins of American Constitutionalism | Gordon Wood

September 15, 2019


Well, thank you Rick. I’m deeply honored to be here on this
great symposium. I’ve learned so much I’m not sure I had anything… I have anything more to add to what went on this this, this morning and this afternoon. But I
want to start by pointing out that there was once an Arab Spring. You remember that phrase but before
there was an Arab spring there was an Atlantic spring, a series of Democratic
revolutions that took place from 1776, the last quarter of the 18th century,
into I think the next 50 years, if you include the revolutions of 1848.
All of those revolutions the… followed the American Revolution. We were the first. Now our revolution was no mere colonial
rebellion. It wasn’t like the Algerians breaking
away from France in the 1960s. In American eyes, and, I think, in the eyes of
of many Europeans, our Revolution was a world historical event. Richard Price, who was a dissenting
minister in London, said that, in 1785, that the American Revolution was the
second most important event in the history of the world. The first of course to him was the birth
of Christ. Now the french revolution erupted 13
years later. Now because it was such a momentous upheaval, the french revolution tended
to dominate Western consciousness but it followed the American Revolution.
Something the French have never forgiven us for. Many French leaders, however,
believe that they were following American leadership. Lafayette sent the key to the Bastille,
the symbol of the Ancien regime, sent that key to Washington and it hangs today in Mount Vernon. So, ours was not a mere
colonial rebellion but the overthrowing of monarchy. That is I think better
understood as authoritarian government because many monarchies, half of NATO is
made up of monarchies, so we have to understand the world they lived in.
Monarchy is what we mean by authoritarian governments. And the
establishment of Republic’s which I think are better understood, for us, as
democracies. Sodom Hussein’s Iraq was a republic, Mubarak’s Egypt was a republic, so Republic has a
has a different meaning for us. So if we use those terms, republic and
interpret it as democracy I think we better understand what they were talking
about. So the Americans aim not to simply
to destroy British tyranny but to put an end to tyranny once and for all. Their
revolution would become an object lesson to oppressed peoples everywhere. They had a responsibility, they thought, to show the world how to create and sustain
democracy. They would lead the world toward a new libertarian future. Yet all
these other Western, the, these Western revolutions that took place on both
sides of the Atlantic over a75 year period up through the revolutions of 1848. All of
them failed, every one of them, except one, ours. Now I’m asked many times why did
our revolution succeed and all these other revolutions over the next 75 years,
revolutions to establish republics or democracies fail? I think the short answer, the best answer,
in a word, is that the colonists or at least most of them, and certainly the
leaders were Englishmen, or Britain’s. And even when they were not Englishman they
thought they were Englishmen. Jon Jay who is one of the most important
of the founders was three eighths French and five-eighths Dutch, without any
English ancestry whatsoever. Nevertheless, Jay could declare with a
straight face, in Federalist number two, the Federalist Papers, number two, that
providence has been placed to give this one connected country to one United
people of people descended from the same ancestors, speaking the same language, professing the same religion, attached to
the same principles of government, very similar in their manners and customs, and
who, by their joint councils, arms, and efforts, have nobly established general
liberty and the independence. That Englishness was important. It made all the difference in the
success of our revolution compared to the other unsuccessful revolutions that
took place over the following decades. The French, for example, had few of the
rights and protections for liberty that the English took for granted in the 18th
century. There are states general which had not, had never had powers
comparable to the English Parliament had not met since 16 14. Thus the national assembly that met in
1789 to bring about the French Revolution had very little experience
with self government to fall back on. By contrast our founders had a long,
English heritage of law and rights to draw upon and no people in the world
were more obsessed with their rights than Englishmen. The English colonists also had a long experience with elective self-government. They had been electing
representatives to their colonial legislatures for generations and in some
cases for over a century. They had the broadest suffrage of any
people in the world. Two out of three adult, white men could
vote. Now this is not democracy by modern standards of course. Women could not vote, there were slaves in most, in almost every state, but
certainly the colonists experienced the greatest degree of democracy in the
world at that time. In England, which was, of course, the most democratic government of the major European states in the 18th century, only one out of six adult males
could vote, compared to our two out of three. Now of this English heritage nothing was
more important, more symbolic of the colonists rights than Magna Carta. That
13th century, feudal, document came to stand for almost everything that
Englishman cherished, for habeas corpus, for trial by jury, the common law, even for no taxation
without representation. So it’s not surprising that in the great
debate with Britain, in the 1760s and 70s, over the nature of the empire,
that the Americans would refer over and over to their rights as Englishmen and
regularly site Magna Carter as evidence of those rights. Until almost the moment
of Independence, they correctly insisted that they were revolting not against the
English, English Constitution, but on behalf of it. Now, during the quarter century, or so,
of constitutional debates that took place, first between the English and the
colonists, between 1764 and 1776 and then the debates that took place among
Americans themselves between 1776 and 1787 or 1791 with the formation of of
the bill rights, Magna Carta, in this whole 25 year
period, was constantly cited. More than any other document it came to stand for
what Americans meant by rights, and by liberty, and their liberties. One of the
most important images of the Revolutionary era is Paul Revere’s
depiction, in 1775, on several Massachusetts paper money notes, of the
of a minute man carrying a sword in one hand and a copy of Magna Carter in the
other. It became the seal of the state from 1775 to 1780. The colonists
justified the meeting of the first continental congress in 1774, by comparing it to the assembly of the Barons at Runnymede, when Magna Carta
was signed, they said. As you all know, some of the important
clauses of Magna Carta were eventually incorporated into the first ten
amendments to our Constitution, into the Bill of Rights. Now the story of Magna Carta in the
American Revolution sounds simple but I don’t believe it is. There was a good deal
of confusion, confusion over what precisely Magna Carta meant on this side
of the Atlantic, compared to what it meant in England. Indeed, Magna Carta became an important
element in the divergence… the divergence that took place during the
revolution between American and English constitutionalism. Magna Carta
contributed to the Americans’ realization that the fundamental laws had to be
written down and separated from the institutions of government, something the
English have never done. But then, in 1787, 1788, during the debate over the
ratification of the Constitution, Magna Carta seemed to decline in importance. The supporters of the new Federal Constitution came to the conclusion that
Magna Carta no longer had any relevance for Americans, any applicability. When the
adoption of the bill rights, in 1791, took place however, Magna Carta was once more placed at the center of American constitutionalism. So you can see the
story of of Magna Carta in the Revolutionary era has been an
up-and-down one and and I think very complicated and I want to try to explain
what happened. Now in order to understand the role of
Magna Carta in, in Anglo American constitutionalism, we have to, have to
give you a brief survey of English history, at least as good Whigs, in the
18th century understood it. English Whigs, on both sides of the
Atlantic, saw that history as a contest between two principles, two principal
elements, the King on one hand the people on the other. Each of these two contestants had rights
in that distant medieval world, the world in which Magna Carta was created. The King’s rights, usually referred to as
the Kings prerogatives, gave him sole responsibility to govern the realm and
these rights of the crown were as old and sacred as the rights
and liberties of the people. That responsibility of the King to govern
ment providing for the safety of his people and seeing that justice was done.
That is that the people’s rights were protected both from each other and from
the King’s government. The King’s courts were expected to adjudicate the law, the
law common to those courts, and to the realm. Hence the development of common law. The King’s highest court of all, Parliament arose sometime in the 13th century, as we
know from discussions today, after the the the the drafting of Magna Carta in
1215. Although many colonists continued to
believe that it preceded, Parliament preceded 1215. And of course, Parliament
was composed both of the feudal, feudal Nobles that eventually became the
House of Lords and of representatives from the boroughs and counties of of the
realm that eventually became the House of Commons. Unlike the 18th century English
Parliament, its medieval predecessor was convened by the King only sporadically,
and did not have, as yet, any direct responsibility for governing the country.
That was the king’s responsibility. Instead, the responsibility of Parliament was mainly limited to voting supplies to the King to enable him to govern, presenting
petitions to the King for the redress of popular grievances, and as the highest
court in the land, correcting and amending the common law
so as to ensure that justice was done and that the people’s rights were
protected. This correcting and amending of the law was not regarded as
legislation in any modern sense. For medieval Englishman thought of law not
as something invented but as something discovered in the customs and precedence
of the past. The modern idea, the positive idea of law as the command of a
legislative body was as yet inconceivable. Indeed, law was equated with justice and
its purpose was to protect the rights of the people from each other and from the
King. Thus the King had his rights to govern
and the people had the equally ancient and equally legitimate rights to their
liberties in their property. Indeed, in some important sense, I think,
and certainly the colonists thought, so the whole of English constitutional
history was seen as a struggle between these two competing sets of rights.
Because the King, in trying to fulfill his responsibilities for governing the
realm, often infringed upon the customary rights of the people, Englishman
periodically felt it necessary for the King to recognize their rights and
liberties and writing. These recognitions in the Middle Ages, took the form of
Coronation oaths, Assizes, and charters issued by the crown. Magna Carta was the greatest of these
and it was reissued as we heard today many times. Now these struggles between the two sets
of rights, those of the King and the people, came to a climax in the 17th
century. Magna Carta was rediscovered, in a sense,
by, and repeatedly invoked ,especially by, Sir Edward Cook, the English Chief Justice of Common Pleas. Only after a bloody civil war and one King had been beheaded and
another driven from his throne, was the centuries long struggle between the King
and the people finally settled in the Glorious Revolution of 1688 – 89. In 1689
Parliament enacted a bill of rights that became nearly as famous as Magna Carta,
as a documentary barrier to the encroaching power of the crown. Now this was the understanding of
English history that the colonists brought to the Imperial debate in the
1760s and 70s. When the Stamp Act was passed by Parliament in 1765, which, by the way, is 250 years ago, so
there’s going to be a celebration of the Stamp Act this year. The colonists regarded this action as if Parliament, parliamentary law was just another
oppressive action by an encroaching crown. They initially drew no distinction
between the King and Parliament and contended that Magna Carta protected
them from both King and Parliament. In its petition to the King, the Stamp Act
Congress, which met in New York in 1765, claimed that the Stamp Act denied
Americans the right of taxing ourselves and the right of trial by our peers. Both
rights they said confirmed by the great charter of English liberty For
Englishmen in the mother country, this colonial contention made no sense at all. It was one thing to invoke Magna Carta
against the power of the crown, that was what it originally had been
designed to do, but it was illogical to invoke Magna Carta against the power of
Parliament. Tyranny came from the monarch not from parliament. In fact, Parliament
was the bulwark, the protector, the creator, if you will, of the rights of
Englishmen against the Crown’s tyranny. By the middle of the 18th century, most
Englishmen in the mother country no longer conceived of Parliament as a
high court making judgments that could be declared null and void by other
courts as Cook had done in in in the 17th century. Doctor Bonham’s case for example, that was mentioned today. Parliament now embodying in the King, Lords, and Commons had become a modern legislature, whose enacted will was law.
Although, Cook had said that Magna Carta will have no sovereign that was no longer true. The sovereignty
of Parliament trumped all declarations of rights and liberties. In fact,
Parliament was the body that issued those declarations of rights and
liberties against the power of the King. The Glorious Revolution of 1688 – 89 had
changed everything. Parliament had become the sole protector of the rights and
liberties of Englishmen against the Crown’s encroachments. All the great
affirmations of English liberties in the 17th century, the petition of right the act of habeas corpus, the bill of
rights, they were acts of Parliament. Statutes, not different in form from
other statutes passed by Parliament Englishman now described Magna Carta
even Magna Carta as the creation of parliament and thus it was a document it could be changed by Parliament. Because Parliament was the guardian of the people’s liberties against the power
of the king to oppose parliament in the name of Liberty as the colonists were
trying to do was incomprehensible to most Englishmen in the 18th century. Magna Carta was thus no help whatsoever
in dealing with the sovereignty of Parliament for the colonist. The Sugar
Act, the Stamp Act. the Townsend Duties the Coercive Acts, all these measures of
the 1760s and 70s that the colonists so deeply resented, and believed
were in violation of the English Constitution, were acts of Parliament not acts of the
king alone. How then could Magna Carta, which limited only the King, be used to limit the actions of parliament. That’s the problem the Americans faced
in these circumstances Magna Carta had no active applicability for
the colonists whatsoever. It had traditionally been understood as
a curb on the ability of the King to harm the people’s rights. Did it make any sense any longer to
invoke Magna Carta when the oppressive power being exercised belong to
Parliament instead of the crown. For Englishmen at home, Parliament had become the supreme,
sovereign, lawmaking body of the nation. Parliament was sovereign
because all the estates of the realm King, Lords, and people were embodied in
it and thus everyone in the nation, presumably, assented to its actions
including in most English minds the colonists, who were thought to be
virtually represented in the house of commons. The sovereignty of Parliament,
said the great English 18th century jurist, William Blackstone, in 1765, meant
that it could do everything that is not naturally impossible to be done.
Interpreted in the 18th century to mean that it could do everything but make a
man a woman, nowadays of course it could do even that. (laughter) And there was no institution no Constitution no judge no court no
Magna Carta to check it. If the Parliament will positively enact the
thing to be done which is unreasonable, wrote Blackstone, I know of no power that can control it.
What Parliament does, he said, no authority upon earth can undo. Now most Englishmen in the mother
country could not imagine anyone defying Parliament in the name of Liberty. That was a logical contradiction to them.
Parliament was the protector, the guardian, of English Liberty. We today,
I think, can scarcely imagine the kind of emotional commitment that
eighteenth-century English Whigs had for Parliament. Who could have Liberty
without Parliament? Certainly governor Thomas Hutchinson, of Massachusetts, who became the arch loyalist, and most hated man in America, thought Parliament was
crucial to English rights. Indeed, he could not imagine the
colonists wanting to be outside the protection of Parliament and in early
1773 he naively thought that he could show
the people of Massachusetts the foolishness of their defying a sovereign
Parliament. In a speech to the Massachusetts General Court, which is the
legislature of Colonial Massachusetts, in January of 1773,
Hutchinson declared that he knew of no line that can be drawn between the
supreme authority of Parliament and the total independence of the colonies. It is impossible, he said, there should be
two independent legislators in one and the same state. For although there may be one head, but
one head, the King, yet the two legislative bodies
will make two governments as distinct as the kingdom of England and Scotland were
before the union. Now if the governor thought that his logic would intimidate
the colonists into accepting Parliament sovereignty, he was sadly mistaken. In response the
Massachusetts House of Representatives declared that if there be no such line
between the supreme authority of Parliament and the total independence of
the colonies, the consequence is either that the
colonies are thus vassals of Parliament, or that they are totally independent.
As it cannot be supposed, the house went on, as it
cannot be supposed to have been the intention of the parties to the compact,
very important phrase, I’ll come back to it, the parties to the compact that we should be
reduced to a state of vassalage the conclusion is that it was their sense
that we were thus independent. The house then went on to accept Hutchinson’s logic
that since two independent legislatures in the same state were impossible, the colonies… the colonies had to be
distinct states from the mother country united and connected only through the King. Now soon other Patriot leaders reached the same conclusion. By
1774 confronted with these repeated claims of the sovereignty of Parliament,
that Parliament had the authority, as stated by the declaratory act of of 1766,
to make laws binding the colonists in all cases whatsoever, confronted with that kind of logic the
colonists decided that they needed to break free of all connections to
Parliament and tie themselves solely to the king. Now historians have called this,
and this… every intellectual… in seven… by…
American intellectuals by 1774 reached this position. Now, historians have called this
the Commonwealth theory of the empire that the American patriots anticipated.
Because it anticipated, it anticipated the Imperial structure worked out by the
Statute of Westminster in 1931 that created the modern British Commonwealth. By which all the separate states, Canada Australia, New Zealand, have independent
legislatures with a common head in in the crown and that’s the existing situation
today they all are are under Queen Elizabeth. Now, this Commonwealth theory of the
Empire revitalized Magna Carta for the colonists. If they couldn’t deal with the…
couldn’t use Magna Carta against parliament, they now we’re tied to the crown. Well now
Magna Carta made sense, and it becomes instrumental again in their arguments. It became the symbol of the limits on
the King’s power and central to their cause. In response to Governor
Hutchinson, the Massachusetts House had referred to
the… the parties to the compact. And that image of a
compact or contract between parties now became increasingly important to the
colonial polemicists. They now began invoking Magna Carta as an example of
such a compact or a contract. A document that was written down, in which rights
were made explicit. During their brief century and a half of history the
colonists had often had written documents in support of their liberties. They especially invoked their colonial
corporate charters that the crown had issued in the 17th century to
individuals like William Penn, or to groups like the Puritans that went to
Massachusetts Bay. Nearly all of these charters were littered with the language
and content of Magna Carta, guaranteeing the people’s rights, Penn was especially
enamored of Magna Carta and in 1687 he arranged for the printing of the of the
new world’s first copy, first edition, of this famous document. Now these
charters issued by the crown were originally empowering documents creating
corporations to do things that had not existed before but they quickly
developed into something very different. They became both frames of government
for the colonies and defensive documents, sort of miniature of Magna Cartas, that
the colonists repeatedly invoked as barriers to limit the power of their
Royal governors. John Adams, for example called the
Massachusetts charter of 1691 a kind of Magna Carta, protecting the rights and
liberties of the people of Massachusetts. On the eve of the revolution, declared one New Englander, these several charters or where these were not… were
lacking, their commissions to their governors have ever been considered as
equivalent securities. These charters had been, had become transformed into what
this writer said, from their subject matter and the reality of things, can
only operate as the evidence of a compact between an English King and the
American subjects. They were reciprocal agreements, wrote Joseph Holly, who was a patriot from western Massachusetts in 1775, reciprocal agreements made and executed
between the King of England and our predecessors. Magna Carta was now
described in the same way as a kind of contract or bargain negotiated
with King John. And as such it took on a new relevance now for the colonists. This
imagined contract between the King and the people was not the contract
described by John Locke, which was a contract among the people themselves to
form a society, instead this contract was the Whig contract that ran through much
of eighteenth-century English political culture. It was what justified the peoples’ obeying the perogative decrees and edicts of the King. This contract was an agreement between
the King and people, legal or mercantil in character, in which protection and
allegiance were the considerations. The people owed allegiance to the King in
return for his protection. Now, crude as this contractual image may
have been, it made comprehensible the always perplexing problem of why the
people should obey the prerogative decrees of the King. Why should they, they’re not consenting to them.The people had certainly not consented to these decrees are these edicts.
Obedience to the King, wrote James Wilson in 1774, one of the leading
intellectuals, a Scot, in in the colonies, obedience to the King he said came from
allegiance which was not the same as consent. Allegiance to the King and
obedience to the Parliament, said Wilson, are founded on very different principles. The fact that he had to say this in
a pamphlet, suggest that there was a good deal of confusion among some of his
colleagues. Allegiance is founded on protection, obedience to Parliament on
representation. And inattention to this difference, Wilson went on, has produced much
uncertainty and confusion in our ideas concerning the connection which ought to
exist between Great Britain and its colonies. John Dickinson, famous Philadelphia
lawyer, tried to explain a distinction. In his, Letters from a Farmer, in
Pennsylvania, in1688, the most important pamphlet until Thomas Paine’s Common
Sense, in the whole period. In his Letters he argued that Americans could
constitutionally accept the royal governor’s suspension of the New York
Assembly as a legal act of prerogative but they could never accept such a
suspension by Act of Parliament. For that, said Dickinson, gives the suspension a
consequence vastly more affecting involving a legislative action to which
the New York colonists had not consented. You see that difference you can accept
the King doing it but you can’t accept the Parliament doing it. Once the
colonists, in 1774 ,had cut loose from all connections to Parliament and tied
themselves exclusively to the crown, with no need any longer for consent, they
began to describe themselves, as one Massachusetts writer said in 1775, as a
distinct people who had engaged in a private bargain with the crown, one that
resemble that of Magna Carta. It was a contract, said this writer, in
which the British people and their Parliament were total strangers, even
though they have in some instances strangely intermeddled. Now, when the King withdrew his
protection in 1775 and 1776, in the colonists eyes the contract was broken, and they were
free, legally, now free to withdraw their allegiance. To emphasize their exclusive
connection to the crown however, Americans in the declaration of
independence in 1776 scrupulously avoided any mention of Parliament. Now, if you go through the Declaration it
says that you, George III have done this this, this. No mention, even though all of the acts
of Parliament with the things they objected to, the Stamp Act, the Townsend
Duties, the Coercive acts no mention of Parliament the closest they come is to say, you George
III, have conspired with others. That’s it, that’s the recognition… they were lawyers and very scrupulously, in trying to define their relationship at
that point was only to the King and therefore there was no need to mention Parliament whatsoever. That’s how they,
that’s how they saw the document, the Declaration of Independence. Now when they came to draw up their new state constitutions in 1776, in some sense far more important than the federal
constitution, which was derived from this initial state constitution making
experience, they sought to apply lessons that they had learned from the
decade-long Imperial debate. Now one was to, of course, avoid the corruption that
they thought pervaded the English Parliament. They believed that the king
bought off members of Parliament by giving them crown offices. Hence, in their state constitutions, they
forbade members of their state legislators from simultaneously holding
office in the executive branch. Now this that this was repeated, of course, in
article 1, section 6, of the later Federal Constitution. What it meant was that it,
forever presumably forever, prohibited us from
ever developing a cabinet Parliamentary system of government. When Senator
Clinton became Secretary of State she had to resign her Senate seat from the
state of New York. If she were a member of the ministry in England, a cabinet
minister, she would have to keep the seat in Parliament, and without that seat in
Parliament she couldn’t serve in the ministry. If you can see that, you see the
difference that our prohibition of-of dual office holding, if you will, the, the significance of it at the
time of the revolution. At the same time we came to realize that the Imperial,
from this Imperial debate, that the fundamental laws and liberties of a
constitution would never really secure unless they were specifically defined
and codified. They had to be brought down from some ethereal presence in the
culture and like Magna Carta modified and made explicit in written documents.
The fundamental law of the Constitution had to be somehow separated from all of
the parts of government, and set over the entire government including the
representative legislators. Now before the American Revolution, in the
Anglo-American thinking, a constitution had really ever been distinguished from
the government and the and its operations. Traditionally, in English culture a
constitution had referred both to the way the
government was put together constituted and to the fundamental rights the
government was supposed to protect. The 18th century English Constitution was an
unwritten mixture of laws, customs, principles, and institutions and included
all the parliamentary enactments. For Englishmen therefore, as Blackstone
pointed out, there could be no distinction between the constitution or frame of
government, and the system of laws. All were of a piece. Every act of parliament was a
part of the Constitution and all law, both customary and statute, was thus
constitutional. Therefore, concluded the 18th century English theorists William
Paley, the terms constitutional and unconstitutional mean legal and illegal.
This is still, of course, true in England today. Now nothing could be more strikingly
different from what we Americans came to believe. Indeed, it was precisely on this
distinction between legal and constitutional that the Americans and
English constitutional traditions diverged at the time of the revolution.
During the Imperial crisis thecolonists had come to realize that all though
Acts of Parliament, like the Stamp Act of 1765, might be legal that is in accord with the acceptable
way of making law, such acts could not thereby, be automatically considered
constitutional, that is in accord with the basic principles of rights and
justice that made beings English Constitution what it was. It was true
that the English Bill of Rights and the Act of Settlement of 1701, were only
statutes of Parliament, but surely, the colonists insisted, they were of a nature
more sacred than those which established a turnpike road. Now under this kind of
pressure the Americans came to believe that the
fundamental principles of the English Constitution had to be lifted out of
lawmaking and the other institutions of government and qualified and said above
them. In all free states, said Samuel Adams, the Constitution is fixed. And as
the supreme legislature derives its power and authority from the
Constitution, it cannot overleap the bounds of it without destroying its own
foundation. Besides, he added, Magna Carta had been
very explicit. Thus in 1776, when Americans came to make their own
constitutions for their newly independent states, they inevitably
sought to make them fundamental and write them out in documents. To make them very explicit, as Magna Carta was. The state constitutions of 1776, 1777 incorporated many provisions of Magna Carta. They were immediately translated
into several European languages and they captured the imaginations of enlightened
people everywhere in in western Europe. By creating written constitutions that
were distinct from government, we Americans went down a very different
constitutional path from that of the English. They permanent… these colonists,
these American revolutionaries, permanently transform the idea of a
constitution to the point that today when new States create a constitution
they inevitably write them down. Over the last 70 years they’ve been dozens maybe
hundreds of constitutions created and the only the only state, I know of, that
has an unwritten Constitution, in that period of state making, is Israel. All the
others wrote wrote down their constitutions, including Afghanistan and
Iraq, and so on, in recent in recent years. By the end of the Revolutionary era, a
constitution had become superior to all the operations of government. It was, as Thomas Paine said, a thing antecedent to a government and the
government is only the creature of a constitution and, said Paine, It was not a thing in name only but, in
fact, as a written document it could be possessed by every family, said Paine, and
carried about like a Bible, like Magna Carta, could be quoted and cited article
by article. Such a constitution could never be an act of the legislature, not if it were to be a check on the
legislature. Already, Americans were coming to think that their constitutions
checked even the representative legislators. Now
that’s a major step, way beyond, of course, what…Magna Carta
originally meant. But it was one thing to define the
Constitution as fundamental law, different from ordinary legislation, and
circumscribing the institutions of government. It was quite another to make such a
distinction effective. Since the revolutionary state constitutions in
1776 were created by the Legislature’s they presumably could also be changed or
amended by the Legislature’s. Some of the constitutions makers realized the problem
and tried to deal with it. Delaware, for example, provided for a
supermajority, five-sevenths of the legislature, for changing its
constitution. Maryland said that its constitution could be amended only by a
two-thirds vote of two successive legislatures. Most states however, simply
enacted their constitutions as if they were regular statutes. Everyone
believed that the constitutions were special kinds of law but no one quite
knew how to make them so. Now in the years following the Declaration of
Independence, Americans struggle with this problem of distinguishing
fundamental law from statutory law and none did this struggle more than Thomas
Jefferson. In 1779, Jefferson knew from experience that no legislature, elected
by the people for the ordinary purposes of legislation only, could restrain the
acts of succeeding legislatures. Thus he realized that to declare his great act for establishing religious freedom in Virginia to be irrevocable would be of
no effect in law. Yet we are free, he wrote into his 1779 bill, in, sort
of in frustration, we are free to declare and do declare
that if any act shall hereafter be passed to repeal the present act or to narrow
its operation, such Act will be an infringement of natural right. In effect he was placing a curse on
future legislators of Virginia. That’s all he could do to warn them don’t.. don’t do anything to hurt this act or you’ll be violating natural right. But
he realized that such a paper declaration was not enough, and that something more was needed. By
the 1780s both he and his friend, James Madison, were eager, as they said, to form
a real constitution for Virginia. The existing one, they said, was merely an
ordinance. With no higher authority than the other ordinances of the same session. They wanted a constitution that would be
perpetual and unalterable by other legislatures. The only way that could be
done was to have the Constitution created, as Jefferson put it, by a power
superior to that of the legislatures. By the time Jefferson came to write his
notes on the state of Virginia in the early 1780s, the answer, to him, had become clear. To
render a form of government unalterable by ordinary acts of assembly, he said, the people must delegate persons
with special powers. They have accordingly chosen special
conventions to form and fix their governments. Massachusetts in 1780 had
led the way. It elected a convention specially designed to form a
constitution, and it then place that Constitution before the people for
ratification. Now we take these procedures for granted
but they stumbled and fumbled into them and we have to appreciate how difficult
it was to reach these conclusions. When the Philadelphia Convention drew up a
new constitution for the nation in 1787, it knew what to do. It had this previous
experience. It declared that the new constitution had to be ratified by the
people meeting in state conventions called for that purpose only.
Constitutional conventions and the process of ratification made the people
themselves the actual constituent power. As enlightened Europeans realized, these
devices with some of the most distinctive contributions the American
revolution made to world politics. But these were not the only contributions.
With the conception of a constitution as fundamental law, immune from legislative
encroachment, more firmly in hand some state judges, in the 1780s, began
cautiously, very cautiously moving, in isolated cases, to impose restraints on
what the Assemblys were in acting as law. Using the written constitutions as a
kind of Magna Carta as Cook had, to limit the legislatures. In
effect, they said to the legislatures as George Wythe, who was judge of the Virginia Supreme Court did in 1782, here is the limit of your authority and
hither shall you go but no further. These were the hesitant
beginnings of what would come to be called judicial review, that remarkable
practice by which judges in the ordinary courts of law have the authority to
determine the constitutionality of Acts of the state and the federal legislatures.
Now the development of judicial review came slowly. It was not easy for people in the 18th
century, even not easy for us today, even those who are convinced that many
of the acts of the state legislature in the 1780s were unjust and
unconstitutional, it was not easy to believe that
unelected judges could set aside acts of the popularly elected legislatures. This
seemed to be an undemocratic usurpation of power. But as early as 1787, James Erdahl of North Carolina, who assumed to be appointed associate justice of the newly
created Supreme Court, saw that the new meaning Americans had given to a
constitution had clarified the responsibilities of judges to determine
the law. A constitution in America, said Erdahl, was not only a fundamental law but also
a specially populated, a popularly created law in writing, limiting the powers of the legislature
and with which every exercise of those powers must necessarily be compared.
Judges, he said, we’re not operatives of the Constitution or usurpers of
legislative power they were merely judicial officials fulfilling their duty
applying the proper law. When faced with a decision, he said, between the
fundamental unrepeatable law, made specially by the people, and an
ordinary statute enacted by the legislature, which was not really the
people, that was contrary to the Constitution. They want… these judges must simply determine which law with superior. Judges could not avoid exercising this
authority, he said, for an American, a constitution was not a mere imaginary
thing, about which 10,000 different opinions may be formed, but a written
document to which all may have recourse and to which therefore the judges cannot bind themselves. Although Erdahl may have been wrong about the number of
different opinions that could arise over a written constitution, as we know. He was
certainly right about the direction judicial authority in America would take.
The way was prepared for Supreme Court Justice John Marshall’s decision in
Marbury versus Madison in 1803, and the subsequent, but bitterly
contested, development of the practice of judicial review, a practice that
Europeans soon became aware of, and present day Europeans have developed
something very similar. In 1776 no one, of course, had foreseen the development of
judicial review. But neither had anyone in 1776 even imagined the kind of strong,
national, government that was created by the new federal constitution in 1787. It
immediately aroused, that Constitution immediately aroused powerful
opposition. In the ratification debates opponents of the Constitution raised all
sorts of objections. The anti-federalists, they said it was,
the Constitution was aristocratic, that it would lead to a consolidation of power
and most important that it lacked the Bill of Rights. Where was the Magna Carta, opponents
asked, that would limit the powers of this new imposing national government.
Now in attempting, as you know, the final day or so George Mason brought up the idea of the
bill of rights, after four months the rest of the delegates just roll
their eyes and and it, was voted down unanimously, every state, but the
anti-federalist picked it up and it became the most potent argument they had. Now in attempting to
answer why the constitutional lacked the Bill of Rights, the Federalists, as the
supporters of the Constitution called themselves, groped I think groped to explain the
distinctiveness of this new system of government they had created. In doing so,
in order to defend that their lack of a bill of rights, and the nature of the
Constitution as they understood it, they had to play down the importance of
Magna Carta as a model for the new national government. Magna Carta or
anything like it made no sense in America anymore, said noah Webster. A bill of rights against the encroachments of kings and barons, against any power
independent of the people, is perfectly intelligible said Webster. But a bill of rights against the
encroachments of an elected legislature, that is against our own encroachment on ourselves is a curiosity in government. How can the people tyrannize themselves?
Since America had no prerogative, no power is independent of the people, what was the point of a Magna Carta or
a bill of rights. Now this new National Constitution, said the Federalists, may
have been written but it was not like Magna Carta at all they said, it didn’t
even resemble their old colonial charters, which were grants from the
crown. As James Madison pointed out in Europe constitutions with charters of
Liberty granted by power. That’s what King John’s issuing a Magna
Carta had been. That’s what the colonial charters had
been. In America, said Madison, by contrast, constitutions have become charters of
power granted by Liberty that is by the people. The people created the power.
They’re not given the rights or acknowledge their rights by… in, in a
Magna Carta like way. So therefore Magna Carta, said the
Federalists, no longer had any relevance in these new circumstances. Now the Federal Constitution,
said the Federalists was not all a contract between rulers and people. Those
existed in the old world. That’s what Magna Carta had been. America was now different Governmental power was not pre-existing. The people didn’t have to bargain
and contract with with it in order to gain recognition for the rights in the
way that people had to, the Barons had to bargain with King John. In America
sovereignty remained with the people and they parceled out pieces of their power
to various officials and various institutions of government. A traditional
bill of rights or Magna Carta under these conditions where were unnecessary. The people only gave the government a
few limited powers and restraint… and retain for themselves all the, all the
rest, all the rights and liberties. Now as ingenious as these arguments were, American experience with written limitations on governmental power and
their devotion to the symbolic importance of Magna Carta were too
strong and the Federalist eventually had to give way to the pressure for a bill
of rights. And as Thomas Jefferson pointed out, as Madison later echoed in
1790, to emphasize, in order to justify a congressional adoption of the
first ten amendments, which he finally came around to, accepting, he had to ,he
had to, he argued that a bill of rights would put a legal check into the hands
of the judiciary which could take… then take hold of in protecting the people’s
rights and liberties even against their own representatives. So he came around to anticipate exactly
what of course has happened. Now with the adoption of the bill of rights in 1791,
Magna Carta was once again brought front and center in the Americans
constitutional thinking. The national government was not as weak and not
simply a bundle of, parcel of powers as the Federalist had claimed, by the 20th
century its powers had become far more formidable and far more pre-existing
than King John…than King John’s powers had been in seven… in 1215 the
opponents of the Constitution in 1787 17788 had taken the long view
and had been right in urging the addition of a bill of rights, a Magna Carta, limiting the national government, the whole national government. Indeed, today all our governments both
state and federal have acquired far more power than the founders ever anticipated.
And far more than King John could ever have imagined possessing himself.
Consequently, we are in need of as many Magna Cartas as we can muster. Fortunately, not only where clauses from
Magna Carta incorporated into the fifth sixth and eighth amendments to the
Constitution but the language and ideas of this great document become an
integral and, a natural part of our jurisprudence. Over the last century the
Supreme Court has so often resorted to the provisions of Magna Carta that
perhaps we have tended to take the document for granted. In a world in which
tyranny still flourishes, and the rights and liberties of people are constantly
violated, it is important that we keep the central idea of Magna Carter alive. The importance of due process of law and
the rights and liberties of the people against all governmental power maybe this 800th birthday celebration will
remind us of how indebted we are to those barons at Runnymede in 1215. Thank you.

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