Samuel Johnson famously said: “That man is little to be envied whose patriotism would not gain force upon the plain of Marathon, or whose piety would not grow warmer among the ruins of Iona.” Last week I thus went to Salisbury Cathedral, which contains one of the four original copies of the Magna Carta. The timing for stirring appropriate emotion too was auspicious. Today is the eight hundredth anniversary of the document’s signing.
Unfortunately, the contemporary setting made enthusiasm for the Magna Carta’s contribution to liberty and the rule of law harder to sustain. Instead of focusing on its history or specific elements of its reception into the English legal system, the Cathedral chose to open its exhibit with a video that portrayed various social movements whose connections with Magna Carta were sometimes obscure. One was absurd: an attack on Israel’s blockade of Gaza. One does not even need to agree with this policy to recognize that empowering Hamas, a theocratic and lawless group that regularly engages in summary executions of people unlikely enough to be under its thumb, hardly advances any ideals of liberty or legality. The video showed more about the ineffectual left-liberalism of today’s Church of England than anything useful about Magna Carta.
In the New York Times today, Tom Ginsburg provided some reasons that whatever the surrounding exhibit, a visitor should not get too excited about Magna Carta. He believes its importance is a myth, for several reasons. It did not succeed at curbing the power of King John. It contained some offensive and other special interest provisions. Its rights were centered on protections for peers rather than the people.
While Ginsburg’s essay is interesting, his revisionism substantially overstates the case against the importance of Magna Carta. A document can fail to succeed in its immediate aims and yet be an important source for subsequent generations. As Mike Rappaport and I show, the Fourteenth Amendment failed to provide equal rights to African-Americans for many years, because it was not enforced according to its terms and yet when those terms are enforced today, they contribute to justice.
Imperfections in a document also do not necessarily deprive it of continuing importance. The US Constitution contained flaws, not least in the way it deal with slavery, and yet the ideals it did instantiate help the cause of liberty. Indeed, the very fact that Magna Carta’s provisions on Jews and fish weirs are forgotten shows their relative insignificance in our history.
The barons who drove to the King to sign Magna Carta were no doubt looking after their own interests. But they were trying to cabin the authority of even a greater and more centralized power—the monarch. The history of liberty in England is in no smaller part the story of people claiming the rights that the more powerful had gained before them. The rising middle class constrained both peers and King even before rights were extended to those without property.
And a final word on the continuing importance of the one percent in constraining government: Even in a democracy for most of the time the people are not present as a substantial counterweight to the state because of rational ignorance and the difficulty of coordination. It is important for a nation to have citizens with substantial resources and peculiar abilities, because like King John’s peers, they can play a crucial role in attempts to contain the state. Even when they fail, they may often set the stage for latter success.
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