In the previous article I referred to the special link the Magna Carta (MC) has to the USA as Runnymede, an acre of Crown land and where the MC was concluded, was given in May 1965 to the American people in perpetuity under the control and management of the Kennedy Memorial Trust.
It should not come as a surprise that the U.S. Reports of the Supreme Court’s decisions refer to the Magna Carta in more than 170 cases. As WEX (the free legal dictionary and encyclopaedia of Cornell University) explains: “Although primarily powerful nobility in medieval feudal England, it introduced legal concepts that persisted overtime and came to be founding American law. The Magna Carta was the basis for English common-law, and thereby indirectly also had influence on American law. The Founding Fathers of the United States particularly admired the Charter’s rebellious nature against the English throne.”
SJ Wermiel (USA) explains that there is a common theme that spans two centuries: the role of the Magna Carta is largely symbolic and, according to Steven Rares (Australia), the rule of law is a powerful assumption. The Magna Carta is not and cannot be positive law in the Supreme Court, since it far predates the writing of the U.S. Constitution, which created the Supreme Court. Despite that, American lawyers referred to the Magna Carta as early as 1794. The application of the MC during the two centuries was diverse.
The first reference to the MC in a justice’s opinion was by Justice Joseph Story in a dissenting opinion from the majority ruling of Chief Justice John Marshall in 1814, dealing with a lawsuit over the ownership of timber. In 2012 In Southern Union Co. v. United States, Justice Stephen Breyer noted that any limitations on the power of judges in imposing fines were historically included in the Magna Carta. In the same year, Justice John Roberts referred to the MC when he had to rule on the autonomy of the church. I agree with Richard Calnan (UK) that there are parts of the MC which are as relevant today as they were centuries ago. Clause 39 serves as example:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
Even if many of the clauses are not fit for our modern legal systems, according to Calnan the MC did set in motion a process which ultimately led to constitutional government.
Throughout the western world the writers of Bills of Rights and State Constitutions were inspired by concepts born in the Magna Carta: that a government should be constitutional, that the law of the land should apply to everyone, and that certain rights and freedoms were so fundamental that their violation was an abuse of governmental authority.
Australia is the only Western democracy without a legislated Bill of Rights, although human rights are included in its Constitution. It seems that having the principles of the MC in one or other form in modern statutes does not guarantee one protection against the abuse of governments. Rares refers to the horrors of two world wars and tyrannical regimes that had blighted human freedom, and the General Assembly of the United Nations’ adoption of the Universal Declaration of Human Rights.
Rares points out that the Declaration included provisions that reflected what had been promised over 700 years earlier in the Magna Carta, such as the rights not to be subjected to cruel, inhuman or degrading treatment or punishment, arbitrary arrest, detention or deprivation of one’s ‘property, the rights to equal recognition before, and protection by, the law, a fair and public hearing by an impartial tribunal in civil and criminal matters, and freedom of movement.
Verlaine de Wit (RSA) warns that the executive does have its own interests and where even the most basic rights and principles of citizens threaten those interests, the executive might well choose to act in a way which furthers those interests rather than the rights of the population. “The inherent threat in that is that it might try to further those interests one at a time by whittling away slowly at our Constitutional rights and democratic principles.” She urges that we as legal practitioners (LPs) should take heed of this. She rightly states that lay people, who benefit as much as LPs from living in a society with Constitutional rights and democratic principles, do not have the technical knowledge to understand the effect of the executive’s actions on the law.
It is the responsibility of us as LPs who can understand this and take a stand against such actions. We at ProBono.Org strife to uphold people’s freedom, dignity and equality – rights that are going back to principles in a document drafted more than 800 years ago – the Magna Carta.
