Magna Carta, Still Posing a Challenge at 800

http://www.nytimes.com/2015/06/15/world/europe/magna-carta-still-posing-a-challenge-at-800.html

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It is relatively unsplashy, as these things go — not very long, not very elegantly written, just 3,500 or so words of Medieval Latin crammed illegibly onto a single page of parchment.

But Magna Carta, presented by 40 indignant English barons to their treacherous king in the 13th century, has endured ever since as perhaps the world’s first and best declaration of the rule of law, a thrilling instance of a people’s limiting a ruler’s power by demanding rights for themselves.

In the United States, Magna Carta — it means Great Charter in Latin — is treated with a reverence bordering on worship by many legislators, scholars and judges. It is considered the basis for many of the principles that form the Constitution and Bill of Rights.

And as a measure of how exciting an old piece of paper can be, in 2007 the billionaire philanthropist David M. Rubenstein paid $21.3 million to buy a (somewhat later) version of it and then put it on permanent loan to the National Archives, where anyone can see it on display.

On Monday, Magna Carta’s 800th birthday is to be observed with an extravagant ceremony in Runnymede, the meadow near Windsor where King John of England capitulated to the barons’ demands and affixed his royal seal to the original document all those years ago.

The event will feature, among other things, a group of 500 American lawyers traveling with the American Bar Association, a host of England’s foremost jurists and scholars and — as a sign of how far monarchs have come since medieval times — Queen Elizabeth II, attending not on sufferance, but of her own free will.

“The events of 800 years ago marked the commencement of a major undertaking in human history,” Chief Justice John G. Roberts Jr. said in a recent address. The renowned English judge Lord Denning called Magna Carta “the greatest constitutional document of all times — the foundation of the freedom of the individual against the arbitrary authority of the despot.”

Amid all the celebrating, the years of planning, of conferences, exhibits, speeches, papers, symposia and encomia extolling Magna Carta, it might seem churlish to take another view. But there are some legal scholars who believe that the charter is actually not such a big deal. Our adulation of it, they say, comes from what we believe it to have been in hindsight — not what it was at the time.

According to this argument, even the notion that Magna Carta established many of Western democracies’ most dearly held rights, like the right to trial by jury and the right not to be imprisoned arbitrarily by the state, is a misreading of history.

“The myth of Magna Carta lies at the whole origin of our perception of who we are as an English-speaking people, freedom-loving people who’ve lived with a degree of liberty and under a rule of law for 800 years,” said Nicholas Vincent, a professor at the University of East Anglia and the author of “Magna Carta: A Very Short Introduction.”

“It’s a load of tripe, of course. But it’s a very useful myth.”

For one thing, as Jill Lepore pointed out recently in The New Yorker, the original Magna Carta in fact lived a short life and died an obscure death.

It was not seen at the time as marking a great moment in democratic history. Nobody had a chance to follow any of its provisions. Almost immediately after agreeing to it, King John prevailed on the pope to annul it. (In an instance of, perhaps, poetic justice, John died of dysentery shortly afterward.)

Also, it was a narrowly fashioned agreement between a small group of privileged people and an even-more-privileged monarch; there was no mention of regular people or of democracy as we know it.

The original Magna Carta became the basis for a number of successive agreements over the years, signed again and again by various kings, culminating in a more definitive 1297 version, one of whose copies Mr. Rubenstein bought for the National Archives.

But it was not until centuries later that Magna Carta was resurrected, reinterpreted and held up as a great symbol of the rule of law. It was invoked in the early days of the American colonies, again during the drafting of the Constitution, and countless times since.

“It’s one of the many, many things in the Anglo-American legal tradition that will eventually grow and mutate and be misinterpreted as something that’s important,” Akhil Amar, a professor at Yale Law School and author, most recently, of “The Law of the Land,” said of Magna Carta, using the historical present. He added: “Stuff happens later that endows it with a certain retrospective significance.”

But in a way the two views can be reconciled: Magna Carta, in the view of many, can still be considered deeply significant even if it was not so significant in June 1215.

“It’s a mistake to think that a document’s importance can be measured solely by the immediate context in which it’s produced,” said Noah Feldman, a professor at Harvard Law School. Magna Carta’s resonance, he continued, “doesn’t rest on what King John and those particular barons were doing at that particular time, but on the length of the legacy in using and interpreting and holding up this document as a banner for the rule of law.”

Scholars who say that the claims for Magna Carta are exaggerated, he added, are merely following academic fashion. “Among historians it’s the cool thing to say,” he said.

“It’s precisely from the capacity it’s had over this 800-year period of functioning as a rallying cry, a symbol, an ideal of the rule of the law that it’s important,” Dr. Feldman said. “No other document in world history has been able to function in so many times and places as the epitome of that ideal.”

It is also one of the few documents that fills lawyers, usually seen as a cynical lot, with almost physical excitement, both as an artifact and as a concept.

“There’s no question that it’s had a substantial and enduring impact on the development of law in the United States of America,” said William C. Hubbard, president of the American Bar Association. “The idea that the law comes from the people, and it’s not the law of the king, is fundamental.”

Americans tend to revere Magna Carta somewhat more than the English, who still have a monarchy and do not have a written constitution. Sometimes this can lead to absurd extremes. Several years ago, for instance, Republicans in the New Hampshire legislature proposed a bill that would have required any new legislation dealing with individual rights or liberties to include “a direct quote from the Magna Carta” (it died in committee).

But as a sign of Magna Carta’s enduring relevance, a provision of the charter holding that, “To no one will we sell, to no one deny or delay right or justice,” was cited last month in a Supreme Court decision on judicial integrity. Upholding a Florida law that forbids judges to solicit campaign contributions, Chief Justice Roberts cited the relevant passage and wrote: “This principle dates back at least eight centuries to Magna Carta.”

“There you have it,” Mr. Hubbard said. “To think that those principles have survived 800 years gives me great hope for the future.”