primer10 min read (2,087 words)

Magna Carta (1215): The Document That Made the Other Documents Possible

To understand why the American constitutional tradition looks the way it does, one has to begin almost six hundred years before the Constitution was written. Not because the Framers were antiquarians — they were not — but because by the time they convened in Philadelphia in 1787, certain ideas about what a government could and could not do to its subjects had been part of the English-speaking political inheritance long enough to be treated as self-evident. Most of those ideas trace, as written promises, to a single afternoon in a meadow in southern England in the summer of 1215.

The document is known as Magna Carta — Latin for "the Great Charter." The adjective refers to its physical size rather than its significance: it was one of two charters issued that year, and the larger received the larger name. The significance came later.

The setup

King John of England was bad at being king. He had lost most of the English crown's continental possessions (Normandy, Anjou, Maine) in a war with France he could not afford, quarreled with Pope Innocent III badly enough that the Pope placed England under interdict for six years, and funded the whole mess by extracting revenue from his barons at rates and methods they increasingly regarded as illegal. By 1215 a significant bloc of the English barons had had enough.

In early summer they captured London. King John, realizing he had lost control of his capital and was about to lose control of his kingdom, agreed to meet the barons at Runnymede, a meadow on the Thames between Windsor and the town of Staines. Over several days in mid-June, royal and baronial clerks hammered out a document in which the king conceded, in writing, a long list of things he would no longer do. The king put his seal on it on June 15, 1215.

What was negotiated at Runnymede was not a bill of rights for the English people. It was a peace treaty between the king and the landholding nobility, written almost entirely in the language of their specific grievances — feudal levies, inheritance fees, wardship of heiresses, the royal forests, the conduct of royal officials, the conditions under which the king could demand scutage (a payment in lieu of military service). Most of the 63 clauses are technical, feudal, and narrow. A few are not.

The clauses that lasted

The document has a long afterlife because of a small number of its 63 clauses. The most important is clause 39, whose English translation runs: "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 judgment of his equals or by the law of the land."

Two ideas compressed into a single sentence. First, the king — and by extension, any agent of the state — cannot simply act against a subject's person, property, or standing on his own authority. Second, if the king is going to proceed against someone, he must do it either by judgment of the subject's peers (a jury trial) or by the law of the land (a body of rules that binds the king himself). Both halves of that sentence are load-bearing. Together they are the oldest written source of what we now call due process of law.

Clause 40 is only eleven words in the original Latin: "To no one will we sell, to no one will we deny or delay, right or justice." In 1215 the English royal court was corrupt enough that refusing to hear a case unless bribed was a normal experience of litigants. Clause 40 put an end to that as a matter of written royal obligation — or tried to. Either way, the clause is the root of "equal access to the courts" in the modern legal-theoretic sense, and for eight centuries after 1215 it could still be quoted, as a proposition, anywhere in the English-speaking world.

A handful of other clauses turned out to matter. Clause 38 required evidence (not just royal accusation) before a man could be put to his defense — the oldest English formulation of what evolved into the rules of evidence and the burden of proof. Clauses 12 and 14 required the consent of the common counsel of the realm for certain taxes and levies, which, five centuries later, became the principle at the heart of the American grievance over taxation without representation. Clause 61 contained a security mechanism in case the king reneged: a committee of 25 barons could, after a formal procedure, legally coerce the king back into compliance. That clause was a civil-war trigger and was dropped within months, but the idea that the sovereign could be held to account by constitutional procedure against his own will is pure Magna Carta.

The transmission arc

Magna Carta would have died in 1215 if it had been left to the document signed at Runnymede. Pope Innocent III annulled it within ten weeks; King John disclaimed it; a civil war broke out; John died the following October of dysentery at Newark. The document's survival is entirely a story of what his successors did.

John's son Henry III, nine years old when he inherited the throne, was advised to reissue Magna Carta as a gesture of peace with the barons. He did — first in 1216, then 1217, then 1225 in a shortened and rewritten form that became the definitive version. In 1297 Henry's grandson Edward I confirmed the 1225 reissue and ordered it entered on the statute rolls. From that point it was English statutory law.

It did not stay visible. For most of the fourteenth and fifteenth centuries Magna Carta was more ceremonial than operational. It was revived in the 1620s by Sir Edward Coke, one of the most influential lawyers in English history, who wrote extended commentaries arguing that clause 39's "law of the land" meant a specific procedure — indictment, jury, public trial — from which the king could not deviate. Coke's argument fed directly into the 1628 Petition of Right, which Parliament passed in response to Charles I's practice of imprisoning critics without charge. Charles accepted the Petition in 1628, then immediately began violating it; eleven years later he was beheaded.

When Parliament ended the interregnum by inviting William and Mary to the throne, it made them accept the 1689 Bill of Rights — a document that again echoed clauses of Magna Carta, most notably the prohibitions on royal suspension of laws and extraordinary courts. The 1689 Bill of Rights is what crossed the Atlantic with the colonists. By the time the American founders sat down in 1787, they had been raised on Coke's commentaries, on Blackstone's commentaries on Coke, and on the 1689 Bill of Rights. Madison's first draft of what became the US Bill of Rights of 1791 reads, in places, like a paraphrase of 1689, which in turn reads like a paraphrase of Magna Carta clauses 39 and 40.

The Fifth Amendment to the US Constitution — "nor shall any person... be deprived of life, liberty, or property, without due process of law" — is a direct descendant of Magna Carta clause 39. So is the Fourteenth Amendment's due-process clause, which the Reconstruction-era Congress drafted using the same phrase and which the Supreme Court has since applied, through the doctrine of selective incorporation, to nearly every significant constitutional restraint on state action. Every time an American court strikes down a state law on due-process grounds, it is applying, in a chain that has not been broken, a principle written down in a meadow in 1215.

What Magna Carta actually did and didn't do

It's worth being precise about what Magna Carta did not do. It did not invent any of the ideas in it — most of clause 39 is a restatement of earlier Anglo-Saxon and feudal legal principles that had been customary for a long time. It did not establish democracy; the only "people" contemplated by the document were the free men, which in 1215 meant a tiny fraction of the population. It did not abolish the king's prerogatives; it merely insisted that the prerogatives had limits. Most of the 63 clauses are now dead letter, either because feudal practice disappeared or because later statutes superseded them.

What Magna Carta did do is put into written form, under the seal of a reigning king, the proposition that the sovereign's authority is not absolute. That proposition is not obvious. Most political cultures through most of history have held the opposite. Once the proposition is in writing and treated as binding — once the king has conceded it and his successors have re-conceded it and it has been enrolled in the statute books — it becomes possible to argue in court that specific acts of the sovereign are illegal, not just unjust. That argument is the seed of constitutional law.

The American constitutional innovation in 1787 was to write a constitution that bound the government from the beginning — not as a settlement after the government lost a war, but as the terms on which the government existed at all. The idea that such a document could have real legal force, that courts could enforce it against the legislature and the executive, is inconceivable without the six centuries of English constitutional tradition that Magna Carta anchors.

Why it matters for contemporary civic literacy

Three reasons to attend to Magna Carta today.

First: when American constitutional text uses a phrase like "due process of law" or "law of the land," the phrase is not decorative. It carries an eight-hundred-year history of which specific practices were considered legal and illegal. Courts interpreting modern due-process questions still reach back to Coke, who reached back to Bracton, who reached back to Magna Carta. A contemporary due-process opinion is, at some remove, an application of a document written in 1215.

Second: Magna Carta is the clearest available illustration that constitutional rights are not granted by governments. They are extracted from governments, usually under duress, and preserved by subsequent generations who insist on them. This is not a romantic reading; it is the historical record. The barons at Runnymede were not asking King John to grant them rights. They were forcing him to concede, in writing, that their rights were rights and that he had been violating them. The American Bill of Rights was added to the Constitution for a comparable reason: several state ratifying conventions refused to ratify without it.