Saturday, June 20, 2020

The Heart of the Magna Carta

The post I wrote last November, on that month’s military coup in Bolivia, seems to have raised uncomfortable questions for my audience. (In case you don’t recall, that’s the one in which I defended the generals’ ousting of President Evo Morales after the President persuaded Bolivia’s Supreme Court to rule that the country’s term limits were a violation of his human rights, and that he was thus entitled to run for as many terms as he wanted.)

Morales had previously tried to remove the term limit in a referendum, and failed.

The coup against Morales was supported by the United States, but because it’s a principle of neoliberal orthodoxy that military coups are always bad, a lot of American pundits were spinning in circles in their attempts to characterize what had happened as anything other than a coup. My own position was somewhat blunter – it was totally a coup, but it was also justified, because in a free and democratic country, the Army owes no allegiance to a President who doesn’t recognize legal limits on his power. That the Court sided with Morales is irrelevant, because, as I put it, “a constitution that means whatever the people in power want it to mean is the functional equivalent of no constitution at all.”

This post, according to one of my readers, “opens up a big question: laws have to be interpreted by people. What if those people make perverse interpretations? How long do you go along with it?  I think this is a very tricky question ... and would require some extended discussion to do it justice.  At the one end of a logical interpretation of what you're saying lies the 'Sovereign Citizen' insanity.

As it turns out, I think that now is a good time for that ‘extended discussion,’ on account of this week marking the 805th anniversary of the granting of the Magna Carta. And what is the common thread that runs through the Magna Carta, the Bolivian coup, and innumerable other victories for the cause of liberty throughout the ages? They are united by a realization, among the men involved, that constitutional limits on government are only meaningful if they are backed up by a threat of insurrection.

King John’s barons and Evo Morales’ generals both had to deal with a similar problem: how were they to handle a ruler who considered himself to be above the law? 

Unlike the Bolivian crisis, the Barons’ War of 1215, which came at the end of King John’s very, very bad reign, was not a struggle for democracy in the modern sense of the word. It was fought in response to a specific set of very medieval grievances, and to understand them, we need to take a detour into medieval history.

During much of the middle ages, the English Kings held extensive lands on both sides of the English channel, something which started with Willian the Conqueror in 1066. In England, these men were sovereign, but they ruled their French territories as vassals of the French King. The French Kings never liked this arrangement, because their various vassals, who in theory were supposed to be loyal to the royal court in Paris, were in reality constantly waging war against both their King and each other. Thus, having one particular vassal who also controlled the whole resources of England made the situation a lot worse.

John became King of England after his elder brother, Richard the Lionheart, died childless in 1199. But there was a problem: John’s twelve-year-old nephew Arthur, whose deceased father Geoffrey was younger than Richard but older than John, had a better claim to the throne. The English noblemen, fearing the consequences of having a child on the throne, crowned John as King, but the French King, Philip Augustus, saw an opportunity – if he could make Arthur ruler of the French lands while leaving John on the throne of England, the problem of having a third of France owned by the King of England would go away.

So Philip and John had a war over the matter, in which John fought so badly that he earned the epithet “John Softsword.” He eventually lost almost all of the land, but in a stroke of good luck he captured Arthur, by then 15 years old, who was taken to an English-held castle and never seen again. Sources disagree as to how the boy died: some say he was beaten to death by his uncle in a drunken rage, others say that he was castrated and died of the wound. One fisherman claimed to have seen his body floating down the river Seine.

But even with Arthur gone, John had still been dispossessed of his French territories. He spent the rest of his life trying to get them back, which meant raising huge amounts of money from the tired kingdom of England in order to pay his mercenaries and bribe other nations to take his side. It didn’t work – the mercenary armies were all defeated – but in the meantime, it drove King John to new levels of ingenuity in coming up with ways to extract money from his wealthier subjects.

Under John, England was taxed even more heavily than it had been taxed to pay for Richard’s crusades – the Robin Hood folktales date from this time for a reason – but taxes were only the beginning.

The prices for writs in the Common Law courts (back then, justice wasn’t free) were raised so high as to virtually guarantee that the richest party would win. King John also decreed that if one of his subjects owed money to a Jew, and the Jew died, then the loan would thenceforth be repaid, not to the Jew’s heirs, but to the King.

In those days, the King had the right to appoint guardians for young noblemen who inherited estates before they came of age; King John abused this power by auctioning off guardianships to the highest bidders, who would use their time in control to loot the estates for personal gain. By longstanding feudal custom, the King could also demand payment from high-ranking widows for the right not to remarry; before John’s reign, the usual amount was £100, but John often demanded £700, and if the widow couldn’t afford it, he would marry her off to whoever offered him the largest bribe.

I could go on for a long time – feudal rights and duties do not lend themselves to easy summary. But the point is that by the spring of 1215, England’s leading barons had had enough. They revolted against the King and, aided by the townsfolk of London, they took the capital. Without his treasury, John had no hope of hiring mercenaries to turn the tide of war in his favor. His only choice, then, was negotiation. The negotiations were carried out on a meadow called Runnymede, twenty miles upriver from London. The barons drew up their demands, and the King granted them in the form of a royal charter.

The Magna Carta had 63 clauses, most of them dedicated to spelling out very precisely the plethora of feudal grievances to which John had to grant redress. It was written in Latin with the King referring to himself in the plural (the royal ‘we’ goes back a long time). The only parts of the Magna Carta that are frequently quoted today are clauses 38, 39 and 40, which read:

38. No bailiff is in future to put anyone to law by his accusation alone, without trustworthy witnesses being brought forward.

39. No free man is to be arrested, or imprisoned, or disseized, or outlawed, or exiled, or in any other way ruined, nor will we go or send against him, except by the legal judgment of his peers or by the law of the land.

40. To no one will we sell, to no one will we deny or delay, right or justice.

This passage, in which “disseized” is an old-fashioned way of saying “deprived of property,” became the basis for the principle in constitutional law that the government can’t deprive you of life, liberty, or property without summoning witnesses and proving its case in court.

As important as this may seem to us, it wasn’t the most radical provision in the Magna Carta. No, that would be the Security Clause, in which a council of 25 leading barons were appointed as enforcers of the Magna Carta, with the King saying that if he didn’t uphold the liberties he had granted, then ‘those twenty-five barons, with the community of the whole realm, shall distrain and distress us in all ways possible, by taking castles, lands, and possessions and in any other ways they can, until it has been put right in accordance with their judgment, saving our person and the persons of our queen and children. And once redress has been made let them obey us as they did before.’

Needless to say, the idea of a law which explicitly authorizes a group of influential men to start a civil war if their rights aren’t respected is foreign to modern sensibilities. But as it turned out, the Security Clause was an absolute necessity. No sooner was the charter granted than King John went looking for ways out of it; one came just a few months later, when Pope Innocent III heard John’s complaint, declared the charter annulled, and forbade the King, on pain of excommunication, from observing it.

The barons responded by renewing the war. They were still at war a year later when King John died of dysentery, leaving the throne to his nine-year-old son, Henry III. The new King’s regent, William Marshall, wanted an end to the fighting, so he reissued the Magna Carta, the barons ceased their rebellion, and the liberties which they had fought for were upheld for many years.

 And while later generations of revolutionaries, both in Europe and America, seldom resorted to anything as blunt as the Security Clause, they all shared the basic belief on which it was based, namely, that the only rights that meant anything were the rights that they were willing to wage an insurrection in order to defend.

So how is that related to what happened last year in Bolivia? And how is it related to the ‘big question’ that my reader posed at the beginning of this post?

Laws have to be interpreted by people,” he said. “What if those people make perverse interpretations? How long do you go along with it?”

The answer comes from acknowledging that the power to interpret is the power to destroy.

Obviously, not every judicial opinion that leaves one of the parties thinking that justice was denied represents an attack on a nation’s constitutional structure. But occasionally, such an opinion does indeed come along.

When Evo Morales convinced the Bolivian Supreme Court that Bolivia’s presidential term limit violated the American Convention on Human Rights, he wasn’t acting out of a sincere belief that the two dozen or so signatories to that convention intended to abolish term limits throughout North and South America. Rather, Morales was doing the same thing that King John was doing when he asked the Pope to annul the Magna Carta – that is, he was appealing to an authority which he thought had the power to release him from all obligation to follow the laws.

Every political system in the world suffers crises of this sort from time to time, crises in which someone in the government – be it the President, the King, the Supreme Court, or whoever – decides that they either aren’t bound by any laws, or else that the laws have no meanings other than the meanings that they choose to give them (and there is no functional difference between these two situations). When this happens, the people only have two options: they can have a revolution, or they can decide that living under a dictatorship isn’t that big of a deal, after all.

Having an independent judiciary is not a solution. In Bolivia it was the judiciary itself which was destroying (or, if you prefer, interpreting) the constitution. In the England of 1215, there was no independent judiciary, because judges were simply the King’s servants, with the King himself presiding over the final court of appeal. The idea that the royal government could be made subject to the law by splitting it in half, and then making one half subject to the other half, would have seemed very silly to anyone alive at the time.

And what of my reader’s claim that ‘at the one end of a logical interpretation of what you're saying lies the 'Sovereign Citizen' insanity?

Well, I suppose that if you put ‘revolutions are never justified’ on one end of a spectrum, then you could also put ‘nobody owes obedience to any laws at all’ on the other end. I suppose that is what the “sovereign citizens” believe. This will not be a surprise to anybody who is familiar with the tried-and-true rule that the opposite of one bad idea is usually another bad idea.

Some people profess to believe that they are “sovereign citizens.” But in real life, almost nobody acts on this belief, because insurrections and rebellions are costly and dangerous, and unless they are founded on a widespread consensus that the government is abusing its power and needs to be reigned in, they will always fail.

The need for balance is specifically addressed in the Declaration of Independence:

‘Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.’

And that principle, known to the American founders in 1776, to the English barons 561 years earlier, and to the Bolivian generals today, is the only grounds upon which any form of government, other than a dictatorship, can be preserved.  


  1. Okay, pretty good. I learned something about the Magna Carta, and the historical matrix in which it was embedded, that I should have already known, but didn't.

    I agree with the proposition -- as an abstraction -- that if people are not willing to defend their liberties arms in hand, they will lose them. The problem is one of judgement: if we have to try to make an insurrection every time the Supreme Court makes a ruling that does not go our way ... we are doomed. There has to indeed be a "a long train of abuses and usurpations...". And there is also this: what if there is indeed such a long train ... but it is one that is supported, if only passively, by the majority of your countrymen? The Founders were rebelling against foreign rule. Our grievances are with our fellow citizens. I don't think there can be a mechanical answer to this problem --it's a question of judgement. And if the majority of our fellow citizens are willing to reduce us under absolute Despotism, it becomes a tactical question of how to respond. One may have the "right" to rebel, but then prudently not exercise that "right" because it has no realistic hope of success. (There is a parallel here to one of conditions for a war to be 'just' in contemporary Catholic theory -- there must be a reasonable chance of winning.)
    So ... Are we there yet, are we there yet? I don't think so. For one thing there is not a hope in hell of winning, should anyone be so foolish as to try. But who knows what the future will bring ... and whatever it brings, it will not violate old Bismarck's observation that all the great issues of mankind are settled, not by majorities in parliament, but by blood and iron.

    And with that observation, let me invite your readers to have a look at, where patriots are discussing the future.

  2. Doug,

    Thank you for engaging with my post. I essentially agree with what you have said. And I have made it clear, in several of my earlier posts, that I don't think a revolution is in the offing in the United States right now; there is a reason that I chose an event in Bolivia to illustrate my point.

    That being said, I believe that the "long train of abuses and usurpations" happened in the past, decades before I was born, and that the American people, through their collective decision not to resist it, (functionally) abolished the constitution and transformed their country into an oligarchy. In the meantime, nothing good will come from pretending that we are still a democracy or that we still have a constitution. If a restoration to democracy is to come, it will have to be by revolution, whenever (and for whatever reasons) that revolution may be fought.