The Barons of England warn us not to throw away what they gained in Magna Carta

Summary: 800 years ago on a field at Runnymede the Barons of England took a large step for humanity. The consequences of their actions still echo today. Now we’re losing what they won for us. On this anniversary recognition of that sad fact can alarm and inspire us.  {1st of 2 posts today.}

“Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”
— Written by Benjamin Franklin for the Pennsylvania Assembly in its “Reply to the Governor” (11 November 1755).

King John signing Magna Carta
If only we were so bold and strong.

Our elites greet the 800th anniversary of Magna Carta (the Great Charter) with “no big deal; move along.” A New York Times op-ed by Tom Ginsburg tells us to “Stop Revering Magna Carta“,, He’s a professor of international law & political science at U Chicago. Law professors are often among the leaders of the movement against our liberty.

The Wall Street Journal of course bats for the anti-liberty teams, with the news headline “Magna Carta Celebrations Reignite Legacy Debate: some question the importance of the document“. Its editors live for the day they can run that headline for the Bill of Rights.

The Economist misleadingly says “The great majority of its provisions have been repealed: of the original charter’s 63 chapters only three — one confirming the freedom of the church, one confirming the liberties of the City of London and the crucial chapter 39 — remain on Britain’s statute book” (except that many of the other provisions remain codified in laws expanding and deepening MC’s provisions).

These blasé sophisticates misunderstand the significance of Magna Carta. It matters little that many of its provisions are meaningless or repugnant to us, that King John repudiated it, or that it was often forgotten for generations (then rediscovered).  Runnymede on 15 June 1215 was a milestone on the long road paved with “blood, sweat, and tears”. The meeting at Philadelphia in 1787 laid another milestone, one now being lost.

The Whig Interpretation of History
Available at Amazon.

The fallacy of “whig history”

The liberties provided by the Constitution were won over centuries. The Saxons and Normans of Medieval England played their part (in the long term it matters not that they were racist, sexist, and defending their class interests). As did the Founders, equally flawed in their own way but jealous of their liberties and willing to fight for them. It’s easy to see our history as an inevitable march to a better society (e.g., like Marxist determinism, or the common misunderstanding of Darwinian evolution). Historian Herbert Butterfield mocked this view (I’m ripping this passage out of his quite different context)…

“… the whig historian can draw lines through certain events, some such line as that which leads through … a long succession of whigs to modern liberty; and if he is not careful he begins to forget that this line is merely a mental trick of his; he comes to imagine that it represents something like a line of causation. The total result of this method is to impose a certain form upon the whole historical story, and to produce a scheme of general history which is bound to converge beautifully upon the present – all demonstrating throughout the ages the workings of an obvious principle of progress…”

The Athenians listening to Pericles funeral oration in 440 BC probably felt a similar confidence and pride about the centuries of progress culminating in their great society.  In 40 years it was wrecked, never to recover. History is contingent on our actions (Mother Nature doesn’t care); it rolls backwards as easily as forward. As we see in our time.

A warning from Magna Carta

“It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt.
— John Philpot Curran’s “Speech On the Right of Election” (1790).

Two provisions of Magna Carta call for our attention today, gifts to us from the Barons of 13th century England.

38.  No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law”, without credible witnesses brought for this purpose.

39.  No freemen shall be taken or imprisoned or disseised {deprived of land} or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.  {This remains in force for the people of England, but no longer in the USA}

The first of these was replaced in 1863 for Britain by improved legislation; the second remains in force. Neither holds in America today. We have thoughtlessly thrown away political structures that took centuries to build, and done so at a rapid rate since 9-11.

There are so many examples. Such as the massive use of “civil forfeiture” — police seizing property without charge or trial (only civil litigation can force its return) blatantly violates both these clauses. Three billion dollars have been seized since 2008 under the Federal program alone. This year there have been small steps to reform (e.g., New Mexico forbid it; the Justice Department limited it — but only slightly).

Our government has taken even larger, bolder steps. The British people fought to limit their Monarchs’ right of arbitrary arrest and punishment from Magna Carta (1215) to their victory in the English Civil War (1641-1662). Obama and his personal kill list have reversed this 450 years of progress, as described by the Department of Justice White Paper “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force” (8 November 2011).

Note the assumptive close in the title. It says “a US citizen who is a senior” — but it means “who is accused of being” by the Executive Branch. Judges and juries determined guilt in the America-that-once-was. Powerful forces are building a new regime on its ashes. We allow them to do so. The Founders weep.

The Constitution: RIP.

Conclusions

“The past speaks to us in a thousand voices, warning and comforting, animating and stirring to action. What its great thinkers have thought and written on the deepest problems of life, shall we not hear and enjoy? The future calls upon us to prepare its way. Dare we fail to answer its solemn summons?”
— Felix Adler in the founding address of New York Society for Ethical Culture (15 May 1876).

There are no reforms that can prevent this decay of the Second Republic (built on the Constitution), no magical legal incantations or tricks of technology. The Constitution is a “paper bullet of the brain” with no power except to the degree it lives in our hearts.  That love appears to have died, as recent events prove (e.g., RIP, Constitution. The Second Republic died this week. Of course, we don’t care — that’s why it died).

Just as the problem lies within us, so does the solution. Change, even redemption, remains a potential of every person and every society.  We need the will to fight for our liberties, and ignore the siren song of those urging passivity as they’re stripped away.

For More Information

For more about Magna Carta see The Great Charter. Its Fate, and Ours by Noam Chomsky.

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2 thoughts on “The Barons of England warn us not to throw away what they gained in Magna Carta

  1. “I am satisfied that so little of Magna Carta is left that nothing of Magna Carta is left, and therefore that chapter on which the appellant relies must be taken to have perished with the others.

    “The appellant has done his country an ill service in raising this point, for but for his rash act generations of English orators might have continued in the fond belief that Magna Carta was still the abiding bulwark of our liberties, and for that act I shall order him to pay a further fine of five pounds. But it is no part of my duty to conceal the truth, and I am compelled to declare with some reluctance that Magna Carta is no longer law.”

    — Mr. Justice Lugg in Rex v. Haddock

    1. Jason,

      That comment is easily Best of Thread!

      For those that don’t recognize this, it is from Uncommon Law by A. P. Herbert (1935), a satire on the English common law. Here is the chapter Jason refers to. It includes the immortal line: “It is the whole business of the honourable profession of the Law to sell, delay and deny justice – and many of us wish that we could sell more justice than we do”.

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