Much has been written, and miswritten, on the Magna Carta. It expressed several key principles of law that were incorporated into the U.S. Constitution, and most other national and state constitutions. Of course, most of it is no longer applicable. It was written for the legal situation in feudal England in 1215, covering issues that just don't arise in modern republics.
The key point that remains controversial today is in two parts:
a. Officials, including the chief executive (the king) is subject to
the same laws as everyone else.
b. Those officials are personally liable for the injuries they do,
contrary to law.
What is presumed is that officials only have limited powers. The
king is not the sovereign, because he is subject to higher laws —
the laws of nature — which honest men can discover and apply, in
principle. (In practice they tend to "find" that the law favors
them, but that is a separate question.)
That's why it was deemed so outrageous for Nixon to say, "It's legal
if the president does it."
But Nixon's comment is revealing, because while these principles are
accepted by almost all officials, at least in public, the problem
comes when they or their appointees decide whether what they are
doing is lawful. If it is lawful, they can't be held liable for
injuries, but if a suit for damages is not even allowed to be heard
on its merits, there is no way for an independent forum (a jury) to
decide whether it was lawful. The problem with "qualified immunity",
as currently practiced, is that the injured party can't get a trial
on the merits.
"Sovereign immunity" is not the same as official immunity. That is
about the state being liable, rather than the official. Again, it makes
some sense to restrict how one who might get a judgment against the
state may collect, generally from a fund established by the
legislature to pay such claims. If judgment creditors could seize
any state property they can find, the courts that grant such
judgments would have the power to destroy the state. However, that
does not mean a claimant should be prevented from getting a trial on
the merits, by requiring that he must get the consent of the state
to even get a trial.
The right to redress (which is in the Ninth Amendment, not the
First) requires that one be able to get a trial on the merits, even
if the options for collecting a judgment, or to get injunctive
relief, are limited. It should certainly always be possible to get a
declaratory judgment on any legal question, even if that brings no
other relief than the support of public opinion.
As I have often said, the problem is not that we have "lost" our
rights, or that, since every right must have at least one remedy, we
have "lost" our remedies. The problem is that access to our remedies
has been put out of the reach of most people, at an affordable
cost. That is a problem of custom, policy, practice and procedure,
not the law per se.
Any real reforms need to open the legal system to intervention by
outsiders who are not controlled by it. That means both structural
and procedural reforms, not just aspirational laws.
Some write about the Magna Carta as though it was some unprecedented
breakthrough in legal affairs, if not in Europe, then at least in
England. Not really. Almost all monarchs in Europe of that time,
even if some claimed rule by "divine right", were subject to being
deposed by a class of aristocrats, and to having a new one elected
by them. The barons at Runnymede were just pushing back against
monarchical overreach, but they did codify their position in terms
that, while it was initially intended only to protect them, also
came to be understood to protect common people as well.
One precedent was actually in Spain, the 1020
Fuero de León, followed by the Cortes
de León in 1188, which set up one
of the first parliaments since ancient times. Another precedent was
Roman Empire, which despite its name, was ruled by an elected
"emperor" with limited powers. The "electors" — princes of the
"states" of that confederation — did not meet together as a
parliament regularly, but did have to consent to any laws the
emperor might make. Emperor Frederick II did establish the Liber
Augustalis, or, Constitutions of Melfi (1231), an early model
It did not take long for King John to start ignoring the Magna
Carta, and his successors further ignored it. Finally, Simon de
Montfort, Earl of Leicester, revolted against King Henry III,
established the first English parliament with the Provisions of
Oxford, but those reforms died with him at the Battle of Evesham.
(Had he lived political and legal history might have been advanced
by 600 years.) However, although the Provisions were suppressed, the
idea could not be completely, and that led to the Confirmatio
Cartarum (1297), which united Magna Carta to the common law by
declaring that the Magna Carta could be pled in court. Once court
precedents began to be built on it, the line of legal rights it
began slowly gained ground over the centuries that followed.
It is sometimes, mistakenly, argued that the Magna Carta laid the basis for grand juries or trial by jury. But the council of barons was a precursor of a parliament, particularly of a House of Lords, not of a grand jury, and at that time the customary method of deciding cases was combat or compurgation (getting twelve people to swear you were telling the truth). No, the grand jury for indictment, and the trial jury for a verdict, has its roots in the juries of ancient Greece, Israel, and Rome. The size of the jury comes from Hebrew law, the sanhedrin, which got its name from the Greek synedrion, and developed under Greek rule.
The struggle for legal rights and republican government has had a
long, complicated history, with advances and retreats all across
Europe and other parts of the world. We document much of that
history on our site. So don't get discouraged. Our battles are just
the latest episode in a long saga.
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