Eight hundred years ago to this very day, at the field of Runnymede alongside the River Thames in England, King John granted the document that came to be known as the Magna Carta, meaning Great Charter. This was the result of negotiations between King John and rebellious barons who objected to what they saw as violations of their customary privileges. By affixing his Great Seal to the document 800 years ago today, the King accepted limits to his power to impose his will on his subjects. It was a momentous occasion, as evidenced by the fact that four original copies of the Magna Carta remain carefully preserved, but its significance has grown over time. It's true that the original Magna Carta was only in effect for a couple months before King John got the Pope to annul it. But, subsequent kings voluntarily reissued the charter as a way of gaining the support of the barons, and portions still retain legal force in England. While many of the specific provisions in the Magna Carta dealt with very medieval concerns, like how the heirs and widows of deceased barons should be treated, a couple clauses resonate very strongly yet today.
"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
To no one will we sell, to no one deny or delay right or justice."
In these clauses, you can see the specific right of habeas corpus that was included in the U.S. Constitution as well as the right to a speedy trial by jury in the Sixth Amendment. You can also see a reference to property rights. Moreover, what comes through is the overarching theme of the Magna Carta, the rule of law, what John Adams called "a government of laws, and not of men".
In the seventeenth century, the Magna Carta was increasingly cited to criticize the king's exercise of arbitrary power in the tug-of-war for supremacy between the English Crown and Parliament. It became a potent symbol of the inviolable liberties of Englishmen.
For instance, when William Penn was put on trial in England for practicing his Quaker faith, he used the Magna Carta in his defense. He later wrote a commentary on the Magna Carta for a work printed in Philadelphia called "The Excellent Priviledge of Liberty and Property Being the Birth-Right of the Free-born Subjects of England", which contained the first edition of the Magna Carta printed in the New World. In this work, Penn explained the significance of the English tradition where the ruler is bound by the law in contrast to countries like France where the King was the law.
He wrote, "In England the Law is both the measure and the bound of every Subject's duty and allegiance, each man having a fixed Fundamental Right born with him, as to freedom of his person and property in his estate, which he cannot be deprived of, but either by his consent, or some crime, for which the law has imposed such a penalty or forfeiture."
It is in this environment that the English philosopher John Locke developed his theory of natural rights, which was so influential in drafting the Declaration of Independence. The natural rights philosophy went a step further than the ancient rights of Englishmen, positing that rights are God-given and self-evident, and that the very purpose of government is to secure these rights. However, you can clearly trace the lineage of the notion of limited government and consent of the governed to the Magna Carta. In fact, the original version of the Magna Carta contained a clause limiting the ability of the King to levy certain taxes on the barons without first consulting them- an early version of "No taxation without representation". While that provision didn't last, the custom of needing consent for taxation eventually led to the evolution of the Parliamentary system and representative government. Still, it is important to note that representative government grew out of even more fundamental principles, like rule of law, limited government, and the notion that citizens retain rights that the government may not violate. Our Founding Fathers thought that representative government was the best way to guard against tyranny and preserve the rights of citizens, but it isn't sufficient. Without a strong tradition of respect for the rule of law, even a duly elected government can descend into tyranny.
Remember that Hitler came to power as the result of a democratic process, and then proceeded to act in the very definition of tyranny. In more recent times, Vladimir Putin was elected President of Russia then stifled opposition and consolidated power to himself, essentially putting himself above the law. When Sergei Magnitsky stood up for the rule of law in Russia and exposed corruption at the highest levels, he was imprisoned in appalling conditions where he died a slow, agonizing death.
By contrast, the 800-year-old Anglo-American tradition of rule of law acts as a crucial safeguard to our liberty. Not only that, but it is also an essential foundation for prosperity. An organization called the World Justice Project has ranked countries based on various factors that indicate how strong the rule of law is in that country. The countries at the top tend to not only be ones we recognize as free, but also tend to be much more prosperous than countries at the bottom of the Rule of Law Index. That's just common sense. You are less likely to work hard to generate wealth or invest in a business if you can't be sure that the law will protect what you worked for.
Still, we shouldn't take this 800-year-old tradition for granted. It will continue to preserve our liberty and provide for our prosperity only so long as it retains the reverence it has built up over the generations. Human nature being what it is, there is always a temptation for those in power to think that they are above the law. For instance, in the famous Frost interviews after he resigned the Presidency over the Watergate scandal, Richard Nixon was asked about the legal limits to what a President can do. Nixon answered, "If the president does it, that means it's not illegal." He couldn't have been more wrong from the standpoint of the U.S. Constitution and the fundamental principles on which it is founded, going all the way back to the Magna Carta.
Still, the danger doesn't just come from megalomaniacs and others who seek to use power for their own purposes. Those entrusted with power who would act outside the law, even when they think it is for the good of the people as they see it, end up eroding that bulwark of liberty that is the rule of law. Ever since the Progressive Era, there has been a powerful school of thought that our system of divided and limited government is inefficient, that we have evolved beyond the need for limits on governmental power, and that power concentrated in the right hands can be used to help people. This is a temptation for every President, and one I fear the current President is particularly susceptible to.
In fact, modern presidents have tools at their disposal that go far beyond anything envisioned by the Framers of the Constitution. The Constitution says that the role of the President is not to write laws, but to "take Care that the Laws be faithfully executed." We now have a massive Administrative State made up of Departments and Agencies to which Congress has delegated enormous power to make regulations with the force of law. Moreover, these agencies have the power to enforce their own regulations and the primary role in interpreting their regulation in individual cases. Thus, they exercise Legislative, Executive, and Judicial power all in one. This concentration of power in Executive Branch agencies creates a strong temptation for presidents to use it to implement their agenda irrespective of Congress or the law of the land. I have been very critical of President Obama for a number of actions that I think exceed his legal authority, from using the Clean Water Act to try to regulate land use decisions in virtually every county in the United States, to forcing states to adopt his preferred education policies in order to get funding or waivers, to granting a massive amnesty from our immigration laws, which even he previously admitted he didn't have the legal authority to do.
I think these are bad policies. But, even those who see these as short term policy victories should be very wary of the long term consequences of anything that erodes our tradition of respect for the rule of law. It took us 800 years to build up, and once it is eroded, it will not be easy to restore. It is vital that presidents exercise restraint out of respect for the rule of law. Congress should also work to reclaim much of the power it has delegated to the Executive Branch in order to reduce the temptation and opportunity for abuse of executive power. But, it isn't just up to elected officials. Our ancient tradition of the rule of law draws its authority from the fact that generations have demanded that their leaders adhere to it. As such, this 800th anniversary of the Magna Carta is an occasion for Americans to remember our heritage and to rededicate ourselves to this bedrock of liberty, the rule of law.
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