June 15, 2015

800 years later, the Magna Carta still matters

By Mark Miller Senior Attorney

Today the world marks the 800th anniversary of the signing of the Magna Carta, one of the great documents of liberty. Eight centuries ago, at Runnymede on today’s date in 1215, England’s barons forced a resentful King John to accept landmark limits on royal power.

The Magna Carta—the “Great Charter”—set precedents that undergird our freedoms up to the present: protections for property rights; guarantees of trial by jury; and safeguards against taxation without representation.

The American Freedom Alliance (AFA) recently invited Pacific Legal Foundation principal attorney and constitutional scholar Timothy Sandefur to participate in the AFA’s two-day celebration of the signing of the Magna Carta. In response to the invitation and in preparation to speak at the event, Timothy put his thoughts down on paper; I encourage you to download that paper (which you can do here) and read the whole thing. But he makes a few points about due process that I want to highlight for you today on the anniversary of the signing of this foundational document of freedom:

For the development of the Anglo-American common law, probably the most important provision of the Magna Carta is section 39, which promises that “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 way, nor will we proceed with force against  him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” This phrase, “law of the land,” or lex terrae, eventually became the Due Process of Law Clauses in our state and federal constitutions.

What made the lex terrae provision so crucial is that here the King acknowledged that his mere dictates are not the law. He is instead subject to, and bound by, the law. In this principle is the seed of all free government, just as the opposite notion—that the will of the ruler is law—is the seed of despotism. If the ruler’s words are not ipso facto law, then that means that there must be some instances in which the ruler’s commands do not qualify as law, and we must then decide in any particular instance whether or not the ruler’s commands qualify as law.

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By acknowledging that not all of his dictates are law, King John’s signature on the Magna Carta likewise implicitly recognizes the objectivity of law. Something is not law just because the king says it, and that means that the people—and particularly the lawyers—are in a position to ask whether or not something the King has said qualifies as law. “The king can send a man to prison,” an English court declared in 1540, “[b]ut whether the cause for which he sent him to prison is lawful or not may be determined by the law; the statute of Magna Carta [declares]…that the king cannot treat his subject contrary to law.” By allowing for the possibility that the ruler’s acts may be deemed unlawful, and creating room for deliberation over what is or is not the law, Magna Carta plants the seed that eventually can grow into free, open, and lawful government.

(emphasis added). 800 years later, Pacific Legal Foundation strives to ask each and every day whether “the King”—whether that “king” be a mayor, a city councilwoman, a governor, a regulatory official, or the President of the United States—has said or done something that qualifies as law, or instead has said or done something that contains within it “the seed of despotism,” as Timothy quite correctly put it. If the latter, then you can be assured that PLF will be seeing that “king” in court.

In doing so, PLF stands up for the best of the principles that the Magna Carta enshrined.

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