I knew some stuff. I’d spend years reading English history.
But nobody can teach me like Jill Lepore and in the April 20 New Yorker, she did just that in her article: “The Rule of History: Magna Carta, the Bill of Rights, and the hold of time.”
For one thing, she reminded me that Magna Carta, signed in 1215, is celebrating (if that’s the right word) its 800th birthday. Wow. Of this, Lepore says:
This year, Magna Carta is eight hundred years old, and King John is seven hundred and ninety-nine years dead. Few men have been less mourned, few legal documents more adored.
Lepore makes it clear that although “Magna Carta has been taken as foundational to the rule of law…[due process] wasn’t put in place in 1215; it is a wall built stone by stone, defended, and attacked, year after year.”
She points out that most human contemporaries of the document–even those who were most affected by it–couldn’t understand a word of it, a point she made previously in an earlier, brilliant article about the U.S. Constitution:
Magna Carta is written in Latin. The King and the barons spoke French. “Par les denz Dieu!” the King liked to swear, invoking the teeth of God. The peasants, who were illiterate, spoke English. Most of the charter concerns feudal financial arrangements (socage, burgage, and scutage), obsolete measure and descriptions of land and of husbandry (wapentaks and wainages), and obscure instruments for the seizure and inheritance of estates (disseisin and mort d’ancestor). “Men who live outside the forest are not henceforth to come before our justices of the forest through the common summonses, unless they are in a plea,” one article begins.
Indeed, who of us understands that today? I’ve written often about the problem of comprehending the laws that apply to those of us who aren’t lawyers. It seems that Magna Carta has never been any different.
If nobody understands it, its significance and meaning are often warped:
Magna Carta’s importance has often been overstated, and its meaning distorted…It also has a very different legacy in the United States than it does in the United Kingdom, where only four of its original sixty-some provisions are still on the books.
Lepore gets in a little stab at our current Supreme Court’s mindless devotion to “originalism,” which–what a surprise!–includes documents that pre-date our own foundational writings. First, she quotes the estimable John Paul Stevens: “The significance of King John’s promise has been anything but constant,” he wrote. Then, of course, we get the Chief SCOTUS Fundamentalist Preacher: “‘It is with us every day,” Justice Antonin Scalia said in a speech at a Federalist Society gathering last fall.” How reverential. Magna Carta, with all its incomprehensible and long-outdated and inapplicable rules (socage, burgage, and scutage??), apparently sits on Scalia’s bookshelf cuddling up to his bible.
One of Lepore’s great paragraphs:
Much has been written of the rule of law, less of the rule of history. Magna Carta, an agreement between the King and his barons, was also meant to bind the past to the present, though perhaps not in quite the way it’s turned out. That’s how history always turns out: not the way it was meant to.
After a brief but vivid biography of King John, Lepore turns her attentions to how Magna Carta influenced our own fundamental documents:
The Bill of Rights drafted by Madison and ultimately adopted as twenty-seven provisions bundled into ten amendments to the Constitution does not, on the whole, have much to do with King John. Only four of the Bill of Rights’ twenty-seven provisions, according to the political scientists Donal S. Lutz, can be traced to Magna Carta. Madison himself complained that, as for “trial by jury, freedom of the press, or liberty of conscience…Magna Charta [sic] does not contain any one provision for the security of those rights.” … The Bill of Rights, a set of amendments to the Constitution, is itself a revision. History is nothing so much as that act of emendation–amendment upon amendment upon amendment.
Lepore’s second to last paragraph can be chewed upon:
Magna Carta cuts one way, and, then again, another. “Magna Carta decreed that no man would be imprisoned contrary to the law of the land,” Justice Kennedy wrote in the majority opinion in Boumediene v. Bush, in 2008, finding that the Guantánamo prisoner Lakhdar Boumediene and other detainees had been deprived of an ancient right. But on the eight-hundredth anniversary of the agreement made at Runnymede, one in every hundred and ten people in the United States is behind bars. #MagnaCartaUSA?
Could Lepore be suggesting that the Supreme Court Five uses laws willynilly, to advance some purpose other than overarching justice? And, I’ll point out, uses whatever laws, foreign or domestic, when it chooses, but is melodramatically outraged when it sets up the straw man of international law as radically offensive to American justice and thus never to be applied in judicial decision-making?
I must give you Lepore’s last paragraph–not only for the thinking but for the gorgeous expression in her writing:
The rule of history is as old as the rule of law. Magna Carta has been sealed and nullified, revised and flouted, elevated and venerated. The past has a hold: writing is the casting of a line over the edge of time. But there are no certainties in history. There are only struggles for justice, and wars interrupted by peace.