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The Magna Carta and Marbury



Tom Ginsburg:

MAGNA CARTA, on which King John placed his seal 800 years ago today, is synonymous in the English-speaking world with fundamental rights and the rule of law. It’s been celebrated, and appropriated, by everyone from Tea Party members to Jay Z, who called his latest album “Magna Carta Holy Grail.”

But its fame rests on several myths. First, it wasn’t effective. In fact, it was a failure. John was a weak king who had squandered the royal fortune on a fruitless war with France. Continually raising taxes to pay for his European adventures, he provoked a revolt by his barons, who forced him to sign the charter. But John repudiated the document immediately, and the barons sought to replace him. John avoided that fate by dying.

The next year, his young son reissued Magna Carta, without some of the clauses. It was reissued several times more in the 13th century — the 1297 version is the one on display in the National Archives and embodied in English law. But the original version hardly constrained the monarch.

A second myth is that it was the first document of its type. Writing in 1908, Woodrow Wilson called it the beginning of constitutional government. But in fact, it was only one of many documents from the period, in England and elsewhere, codifying limitations on government power.

It’s not a precise comparison, of course, but I would say that roughly the Magna Carta is to the development of constitutional government as Marbury v. Madison is to the development of judicial review. That is, it’s a relatively trivial episode that ended up being used well after the fact to justify changes that were happening for independent reasons, and its symbolic importance is sometimes mistaken for actual causal significance. The symbolic use of the Magna Carta is of greater historical importance, but if advocates of constitutionalism didn’t have the Magna Carta they would have used something else.

I assume it’s unintentional, but I also like this:

Magna Carta has everything going for it to be venerated in the United States: It is old, it is English and, because no one has actually read the text, it is easy to invoke to fit current needs. A century ago, Samuel Gompers referred to the Clayton Act as a Magna Carta for labor…

Since, as George Lovell put it, the immediate substantive value of the Clayton Act to the labor movement was worth less than the souvenir pen Wilson used to sign it, Gompers had a point!

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