This article appeared in the Philadelphia Inquirer on June 14, 2015.
On June 15 we Americans, along with our English cousins, will celebrate the day 800 years ago when English barons, on the fields of Runnymede, first brought the arbitrary reign of a king under the rule of law through a written document, Magna Carta.
Yet in many ways today, as we prepare to celebrate next month our own overthrow of an English king, we find ourselves back at Runnymede, petitioning our government for relief from its arbitrary rule. The story of this triumph and turn in the history of liberty is worth retelling.
It begins before Magna Carta, with the creation of the common law in the third quarter of the 12th century in the reign of Henry II. Crafted by judges deciding disputes brought by private individuals, English common law arose after Henry established circuit courts and a central appeals court that over time made the law “common” to the realm. It was a law of rights, derived from reason and custom, aimed largely at ordering liberty, property, and contracts.
King John’s abuse of those rights led in 1215 to Magna Carta - positive “constitutional” law created by a political act. English liberty thereafter grew unevenly, of course. Nevertheless, the document’s reach expanded over time. And after its eclipse during the Tudors’ reign, Sir Edward Coke, the great 17th-century English jurist and parliamentarian, brought it once more to the fore in his struggles with the Stuarts.
And well it was that he did, because it was a fortunate accident of history that English settlements began just then in America. Not surprising, those settlers brought their rights as Englishmen with them, as evidenced from Virginia’s 1606 charter all the way to Georgia’s of 1732. Nor did developments back in England over this period go unnoticed abroad - the 1628 Petition of Right, the 1679 Habeas Corpus Act, the 1689 Bill of Rights after the Glorious Revolution, each of which drew upon the Great Charter and continued to inspire the colonists.
That regard for Magna Carta was especially strong as relations with England deteriorated as the 18th century wore on. In fact, as late as 1774, when the Continental Congress met to draft remonstrations, the delegates rested their case mainly on their “ancient rights” as Englishmen.
But that would end. Their repeated petitions having gone unanswered save by fleets of armies and the blood of Lexington, those who signed the Declaration of Independence appealed not to the king or Parliament but to “a candid world,” justifying independence in the name not of our ancient rights but of the universal rights of all mankind. We dissolved the political bands that connected us to England and instituted new government - “by the authority of the good people of these colonies.”
And where did we get that authority? From no one, save “our Creator.” We were born with it - born free, with natural, unalienable rights to rule ourselves. Thus the Declaration became America’s Magna Carta.
Drawing, ironically, on the writings of an Englishman, John Locke, whose ideas suffused political thought in 18th-century America, we invoked a “state of nature,” absent government, to explain the foundations of political legitimacy. We declared liberty our natural condition and government by consent the legitimate means for securing it, but only if constitutionally limited, leaving us otherwise free to pursue happiness as we wished.
And when we reconstituted ourselves 11 years later we returned to those principles, making it clear from the start that sovereignty rests with “we the people,” who constitute and empower government - by right. Government doesn’t give us our rights. We give government its powers, as enumerated in the Constitution we ratify.
And therein lies the fundamental difference between England’s and our political systems. The Glorious Revolution never resulted in so basic a break with the past, and in reconstituting the polity from the ground up, beginning with the moral order, from which the political and legal orders would be derived. Thus the doctrine of delegated, enumerated, and limited powers is, properly speaking, our bill of rights. As Alexander Hamilton wrote, “The Constitution is itself, in every rational sense and to every useful purpose, a bill of rights.” Let’s remember, the actual Bill of Rights was not ratified until four years after the Constitution was written.
Today, of course, the elegant theory of legitimacy the Founders and Framers gave us has been largely abandoned. New Deal Progressives effectively rewrote the Constitution 150 years after the original writing. As a result, our constitutional presumption - “all that is not given is reserved” - now reads “all that is not reserved is given.” We’re back in the fields of Runnymede, importuning our government for relief from its assumption of plenary power.
And it isn’t only untethered executive power - arbitrary rule by the executive state - that oppresses us, but executive rule arising from congressional will - often reflecting the dynamics of special-interest politics. Exhibit A before the Supreme Court at the moment, echoing medievalism itself, is a California farmer’s challenge to a New Deal marketing scheme that allows the government to take 47 percent of his raisin crop - without compensation. Not even King John would have gone that far.
As we celebrate Magna Carta and our own independence, let’s think about reclaiming our ancient liberties.
Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.
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