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Drew Clark: Celebrating, and improving, the 800-year-old Magna Carta

Carlyle Group co-founder and Magna Carta owner David Rubenstein, right, and Archivist of the U.S. David Ferriero, unveil the 1297 Magna Carta in its new state-of-the-art encasement at the National Archives in Washington, Thursday, Feb. 2, 2011.
Carlyle Group co-founder and Magna Carta owner David Rubenstein, right, and Archivist of the U.S. David Ferriero, unveil the 1297 Magna Carta in its new state-of-the-art encasement at the National Archives in Washington, Thursday, Feb. 2, 2011.
Manuel Balce Ceneta, Associated Press

OREM — This year marks the 800th anniversary of the signing of Magna Carta, agreed to on June 15, 1215, at a field in Runnymede, not far from the River Thames. A seminal event in human history — considered by many to be second in importance only to the birth of Jesus Christ — this "Great Charter" established the first limits on the divine right of kings in the Western world.

It's rather infrequent that our culture can celebrate the 800th anniversary of anything. But that's only one reason why the concessions that the feudal barons extracted from King John were of such great importance.

At a symposium held last week at Utah Valley University here on why Magna Carta still matters today, historian Gordon Wood ticked off the legal principles first articulated in the document: Habeas corpus, trial by jury, the legitimization of the common law, the principle of no taxation without representation. Other speakers addressed questions of Magna Carta's impact on the relationship between church and state, the role of women and the document's relevance for 21st century controversies.

Wood, a scholar of the American Revolution, focused on how the document was seen by American patriots and how it contributed to the origins of American constitutionalism. "In the 1760s and 1770s, Americans refer over and over again to their rights as Englishmen; not against the English constitution, but on behalf of it," he said.

In English history, Magna Carta is really the beginning of its form of government as a constitutional monarchy. The very notion of "parliament" as a legislature would arrive only later that century, as the charter was repeatedly re-issued and reconfirmed. Wood explained that the articulation of human rights came in its strongest form with the British Glorious Revolution, installing William and Mary as monarchs and establishing the Bill of Rights.

That 1689 document further limited the powers of the crown and set forth free elections, a regular Parliament and free speech within the legislature. It was a zero-sum game: Parliament gained powers at the expense of the king.

From the standpoint of the American branch of English history, however, American colonists wavered over whether they owed their political allegiance to the king or to Parliament.

Their grievances, of course, were attributable not to the British king but to the British Parliament, which had passed the Townshend Acts, the Stamp Act and the Coercive Acts.

When they rebelled, the American Founders posited a different constitutional firmament. They located the origin of their natural rights not as a heritage from the king or from noblemen but as flowing directly from God: "To assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them," Thomas Jefferson wrote in the Declaration of Independence.

Indeed, as Wood noted, "the Declaration of Independence scrupulously avoided any mention of Parliament." The closest it comes to indicting Parliament is the charge that King George III, to whom complaints of the Declaration is addressed, "has combined with other to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws."

Americans, having fled the Old World to be nurtured by the wilderness of the New, simply did not accept political limitations within European constitutional thought. As Bernard Bailyn, Wood's teacher at Harvard University, wrote in "To Begin the World Anew: The Genius and Ambiguities of the American Founders":

"The metropolitan world demonstrated that dual sovereignties — sovereign states within a sovereign state — could not coexist. That would lead, it had forever been said, systematically and inevitably, to conflict and chaos, for sovereign power was in its nature indivisible."

Not so, recounted Bailyn. "Their constitutional solution to this ancient problem — federalism: imperfect but effective — was a formalization of the de facto constitutional world that they, as British provincials ruled by both their local assemblies and Parliament, had known for generations.

"So they reconsidered the immemorial doctrine of the separation of powers, and recast the elements involved from legalized social orders — crown, nobility, and commons — which had never been a direct part of their lives, to functioning branches of government — executive, legislative, judicial — which had been."

The genius of the Founders lay not only in what they thought and said and did, but where they did it. Their experience on the frontier of the known human world gave them the gift to see and re-envision governments and laws in a fresh light.

Magna Carta marked a significant milestone in the reformation of constitutional thinking. That accomplishment in law cannot be understated, even as we see that it can be improved upon.

Drew Clark can be reached via email: drew@drewclark.com, or on Twitter @drewclark, or at www.utahbreakfast.com.