The following is a lightly edited version of a short talk I gave on the 800th anniversary of Magna Carta for the September meeting of the Schwartz-Levi Inn of Court at UC Davis School of Law.
Tonight I will be discussing a few of the lesser known aspects of Magna Carta. I'm sure you're all familiar with the broad outlines; the barons of the realm of England extracting various concessions from King John at Runnymede Field, and I won't rehearse that history in any detail.
Let's start with the words "Magna Carta." When British Prime Minister David Cameron appeared on the David Letterman show in 2012, he admitted that he wasn't sure how to translate the Latin words Magna Carta. But he said it with an English accent, so it didn't sound quite as stupid as it would have if an American had said it. The basic translation, of course, is "Great Charter," but it's important to note that originally the sense of "Magna" as "Great" wasn't "great" in terms of significance but "great" in terms of size. The document nowhere refers to itself as Magna Carta. A clerk gave the charter this name a few years later to distinguish it from a smaller document known as the Charter of the Forest. So the original sense of "Magna Carta/Great Charter" was more "physically big charter" than it was "significant charter."
If we were to go back in time and ask Englishmen in the 17th century when Magna Carta was signed, they would have said 1225. This year, 2015, would be the 790th anniversary of Magna Carta, according to them. And the monarch who signed Magna Carta was Henry III, not John. This seems to be a rather significant discrepancy.
What explains it? Well, King John immediately asked the pope to declare Magna Carta invalid because he signed under duress, and the pope did so. After John's unexpected death in 1216, the document was re-issued under the name of John's son, the new boy king Henry III, and it was re-issued again in 1225, when Henry III had reached his majority. It was this document, with significant deletions from the original, that later generations celebrated as Magna Carta, and in many ways appropriately so, because this was the only document that was of continued legal significance. The 1215 document was invalid. Only much more recently have we given more attention to 1215, King John, and the original text.
The text of Magna Carta contains numerous promises from the king to his barons and subjects. Promises from kings to subjects are great, of course, but the real issue is enforcement. Magna Carta had a solution, but it wasn't a particularly good one. It provided for 25 barons to serve as enforcers of Magna Carta against the king. If the king violated the provisions, the barons "shall distress and injure us in all ways possible - namely, by capturing our castles, lands and possessions and in all ways that they can." As Harvard Law professor Larry Tribe has argued, "for all that we justly celebrate Magna Carta as the well-spring of the rule of law, its carefully wrought mechanism for legally restraining abuse of royal power was nothing more than institutionalized civil war. Nothing could more strikingly illustrate the theoretical and practical difficulty of reining in the power of him who reigns." This provision was not included in the re-issue under the Henry III, and it would take many more centuries before better answers to this problem, other than simply attacking the king, were formulated.
Magna Carta has become far more a symbol of constitutionalism than it ever was originally. Generations of English and American lawyers have cited it to courts in support of personal liberties. Indeed, the citations became so frequent that many English courts simply grew frustrated. Chief Justice Roberts noted recently that if a lawyer is citing Magna Carta, he is probably losing. This has been true for a while. In the seventeenth century, a juror complained about the then typical practice of judges fining jurors for verdicts with which the judges disagreed. When the juror cited Magna Carta, the judge responded, "Magna Carta, Magna Farta." I challenge anyone to distinguish adverse precedent more concisely.
Today is California Admission Day, and the organizers of this program have asked me to connect California's admission to the Union in 1850 to Magna Carta of 1215. This is not an especially easy task, but here's my best effort. California's admission was signed into law by President Millard Fillmore. But Fillmore was not supposed to be president. He ascended to the presidency when President Zachary Taylor died unexpectedly, under mysterious circumstances, just two months earlier. President Taylor, in February 1850, had approved the proposed California constitution, concluding that it was republican in form. And here's the connection. Zachary Taylor was a direct descendant of King John. And he's not the only American president who is a direct descendant of King John. So were Presidents Washington, Jefferson, Madison, John Quincy Adams, both Harrisons, Cleveland, both Roosevelts, Coolidge, Hoover, Nixon, Ford, both Bushes, and Obama. Three of the four Presidents on Mount Rushmore are grandchildren, many times over, of King John. So America owes a lot to the loins of King John.
And of course we all know King John was a bad king. We don't call him John I, but simply John, because he so thoroughly soiled the name that no subsequent English monarch ever adopted it. It is tempting to speculate that he is the source of our expression "going to the john," but, sadly, I have no evidence to back that up. But we shouldn't completely dismiss him. If John had been a model king, there would have been no Magna Carta. Similarly, if James II had been a good king, there would have been no English Bill of Rights. And if George III had behaved appropriately, there would have been no American Declaration of Independence or U.S. Constitution. It brings to mind the old problem in Christian theology about the nature of Judas; without Judas's betrayal of Christ, there would have been no crucifixion and no resurrection. So shouldn't Judas get at least some credit? So too, perhaps, with these bad kings. For every twenty toasts to Magna Carta, we should perhaps raise one to King John, even if he would have privately complained about being forced to sign a "Magna Farta."
