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Who Needs The Magna Carta?

copy of the Magna Carta in a museum display
A copy of the Magna Carta, on display at the Houston Museum of Natural Science in 2014.
Photo by Flickr user etee

There has been a lot of discussion this week about the Treaty of Runnymede, although very little of the discussion actually uses that name. The name in use today - and for most of the past 800 years - is the Magna Carta.

To some, the “Great Charter” (as “Magna Carta” directly translates) is a vital stone in the foundation of modern constitutional law and civil liberties. To others, the document is just a laundry list of technical details concerning the concessions King John of England made to a gaggle of rebellious barons. The critics note that almost none of the Magna Carta’s provisions remain active today in British law, and some clauses, such as those governing the circumstances in which widowed women could decline or enter into remarriage, or in which indebted minors could avoid making interest payments to Jews, are antithetical to modern democratic norms.

I might not have given too much thought to the Magna Carta’s current relevance had I not visited the British Library in London last week during a family vacation. There, one of the four surviving original copies issued on June 19, 1215, was on display. I reached it at the end of a lengthy exposition of other original texts and historical background that explained how the Magna Carta came to be, what preceded it - because nothing of any consequence in political life springs from a vacuum - and what happened to it in the eight centuries since it was promulgated. (Although Friday marks the 800th anniversary of its issuance, most observers cite June 15, when the king and the barons reached agreement under the mediation of the Archbishop of Canterbury, as the date on which the Magna Carta actually came into existence.)

I did not expect the exhibit to engender any strong feelings. I am not British. While I appreciate the role that British law has played in the development of our own legal culture in the U.S., I do not have a detailed knowledge of the United Kingdom’s constitutional history, and have never particularly wished that I did.

But as I stood in the long, slowly moving queue (this was England, after all, where queuing is an art form), filing past the beautifully curated exhibits, I realized that this really mattered - and not so much to me as an American, or to my mainly British fellow attendees, but to everyone who lives in a culture that falls outside the reach of the law and tradition springing from the Magna Carta.

Want to know if the Magna Carta still matters? Don’t ask someone from the United States or the United Kingdom. Ask a dissident in China, or a political activist in Russia, or a woman who wants to get a driver’s license in Saudi Arabia.

My thought, as I moved through the exhibit and considered its explanation of the Charter and the debate around it, is that the Magna Carta’s admirers are correct. So are its critics. But both are missing the real point.

Yes, the Magna Carta was, at its core, a failed treaty; its signers violated it and the Pope annulled it in short order after it was enacted, though the Charter was revived under the regency of King John’s son, after John’s death in suspicious circumstances the following year, and has been reaffirmed by British monarchs many times since. Yes, it was not a constitution in any modern sense of the word. Yes, we would abhor some of its provisions were they to be put forth in our time.

But it makes no sense to impose 21st century expectations on a 13th century document. When the Magna Carta was conceived, the world was still centuries away from its first true written constitution. (America’s, the oldest still in use, was adopted in 1789.) Neither monarch nor nobles sought to create a written constitution as we understand it at Runnymede. They certainly were not trying to create a democracy.

The Magna Carta may have done only one thing of lasting import, but if so, it was crucial: The document established that the sovereign’s power is not unlimited and may not be unilaterally exercised in an arbitrary fashion. The Charter stands for the proposition that the monarch, and by modern extension the state, is not above the law.

By its presence or by its absence, this principle is critical to our lives today.

As I write this, we await a Supreme Court decision on the power of our executive branch to extend health care subsidies to millions of people in states that did not set up exchanges under the Affordable Care Act. The question at the heart of the case is whether the “Obamacare” statute authorized this action. No authorization, no subsidy - and probably no Obamacare, at least in its current form. The court’s ruling will be binding on the government.

Similarly, a federal judge ruled this week that the terms imposed by the Federal Reserve on American International Group Inc. as part of its financial crisis bailout were illegally harsh and deprived shareholders of their rights. The judge awarded no damages, reasoning that the shareholders would have been wiped out in AIG’s collapse in the absence of that bailout. But the ruling underscored that the government’s executive powers are limited by law - a ruling that could have broad implications in other cases. I can’t wait to see what happens when Fannie Mae and Freddie Mac’s shareholders cite this decision to challenge the government’s effective confiscation of their company.

Contrast our system with that of China, where the courts are subject to the whim of the government, and the government is subject to the whim of the Communist Party, and the Communist Party is subject to nothing but its own factional infighting. Nothing resembling true freedom can exist under such a system, because nobody can know his or her rights, or trust that those rights can be asserted and enforced.

Or consider Russia, where democracy under the current government is little more than a charade, and courts cower under pressure from the Kremlin.

Where government power is not effectively checked, corruption in the use of that power flourishes, as it does in China and Russia today.

The Magna Carta established that the state is subject to the rule of law, and does not merely rule by law. Later, our own Constitution established that even the law is ruled by law - a statute passed by Congress, or in other legislatures (including the modern U.K. Parliament), is invalid if it violates constitutional provisions or principles.

Our societies could not exist in recognizable form without this constraint. And while the Treaty of Runnymede built on earlier texts and was followed by eight centuries of additional history, the Magna Carta is what actually set out the concept that sovereign power is limited.

I didn’t really think about that before my visit to the British Library, and before the discussion of the Magna Carta’s anniversary this week. Now that I have, I think the critics should give the Great Charter its due, and I hope its example will spread to the parts of the world that really need it today.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book Looking Ahead: Life, Family, Wealth and Business After 55.

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