On 4 July this year, the United States of America celebrated its semi-quincentennial birthday, marking 250 years from the adoption of the Declaration of Independence from Great Britain and King George III. Overseen by President Donald Trump, the celebrations were not without their controversy. Despite, or perhaps partly as a result of, a divisive period in recent American history, it was a time to reflect not only on the present state of the United States, but on its politically spectacular birth, and the founding values commonly believed to be articulated in the Declaration of Independence.1
The Declaration marked a concise and decisive break of the original thirteen colonies’ political ties to Britain. However, in making this break it reflected in some ways a much older British text which had already become one of the most famous legal documents: Magna Carta. The association between the developing government of the fledgling United States and Magna Carta has long been recognized. It is credited with inspiring parts of the American Constitution,2 and King Charles III noted in his speech to Congress this year that it has been cited in at least 160 US Supreme Court cases since 1789.3 Magna Carta is thought to be of such historic importance to US law that the American Bar Association sponsors a rotunda at Runnymede to mark the spot where Magna Carta was originally sealed in 1215.
So, Magna Carta continues to enjoy a special place in legal history and contemporary political debates of the United States, perhaps even more so than in Britain. But, in this birthday year we might ask, what could a historical comparison tell us about how the ideals and popular understandings of Magna Carta travelled? And could such a comparison shed any light on how the Declaration of Independence might be read today?
In considering these questions, it is useful to consider the Declaration not simply as a breakup, but as a document which set out a carefully explained and reasoned decision. In doing so, the signatories attempted to legitimize their treasonous actions, knowing that they were potentially risking their lives if they failed. Eric Slauter explains that the American revolutionaries based their ideas around two key themes. Firstly, understandings of the ‘national rights of Englishmen’ and secondly, on the concept of natural rights of men.’ This appealed ‘to a shared Anglo-American and European philosophical tradition’ respectively.4 A look at the role of Magna Carta in supposedly establishing the ‘national rights of Englishmen’ reveals the influence of Magna Carta. In particular, this post considers the idea that Magna Carta provided the Declaration of Independence with the basis for a self-legitimizing right of rebellion.
Magna Carta was originally sealed as a peace treaty between King John and fifteen barons in June 1215. It was a product of rebellion sparked by the perceived arbitrariness of John’s rule and seemingly endless yet unsuccessful wars in France at great expense, for which unpopular taxes were repeatedly raised. To avoid being overthrown, King John committed to establishing and protecting certain rights. It is often considered to be one of the earliest documents which set out the concept of the rule of law, although this has been challenged.5 However, John had no intention of keeping to his word. After an appeal to the Pope, this original document was almost immediately declared ‘null, and void of all validity for ever’6 by Innocent III in August 1215.
One might think then that the history of Magna Carta would be a short one. However, various versions of Magna Carta were re-issued in 1216, 1217, 1225, and finally 1300. The status of Magna Carta as representing a central but still somehow inexplicitly defined cornerstone of British constitutional law was cemented during a revival in interest in Britain during the seventeenth century, particularly by Parliamentarians in their fight against King Charles I, and in the writings of the jurist Edward Coke. Since then, several of its clauses such as those concerning the right to justice and a fair trial, and associated ideas such as habeas corpus and the rule of law, have developed a long afterlife, travelling across the globe, particularly across the British Empire. This was in part due to a belief, particularly in settler colonies, that English laws and protections would continue to apply to Englishmen throughout British colonial dominions. The first Charter of Virginia of 1606, for example, stated that
all and every person being our subjects, which shall dwell and inhabit within every or any of the said several colonies and plantations… shall have and enjoy all liberties, franchises and immunities, within any of our other Dominions, to all intents and purposes, as if they had been abiding and born within this our realm of England.7
It would seem, therefore, that the rights of Magna Carta as recognized at the time should also apply to English settlers of the thirteen colonies.
The first clause of Magna Carta states, ‘To all free men of our kingdom we have … granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs’.8 In total, sixty-three commitments were made, which ranged in subject matter from the right to a trial by one’s peers to widow remarriage, and the removal of fish weirs from the rivers. Perhaps most importantly, the first Magna Carta contained a ‘security clause’, clause 61. This was an enforcement mechanism by which King John acknowledged that if he ‘transgress[ed] against any articles of peace’, a specially elected panel of twenty-five barons was entitled to ‘distrain and distress us in all ways possible, by taking castles, lands and possessions… saving our person and the persons of our queen and children’.9 As Dan Jones puts it, ‘Magna Carta allowed for licensed civil war’.10
The Declaration of Independence, like Magna Carta, was a document which stood against the ‘tyranny’ of the English monarch. Just as King John’s rule has been described as ‘overbearing, extortionate and cruel’,11 the Declaration claimed that ‘[t]he history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States’. In his influential pamphlet Common Sense of January 1776, the political philosopher and founding father Thomas Paine wrote, ‘independency means no more, than, whether we shall make our own laws, or whether the king, the greatest enemy this continent hath, or can have, shall tell us “there shall be no laws but such as I like”’.12 Paine called for the writing of a ‘Continental Charter, or Charter of the United Colonies’ which he said would be their answer ‘to what is called the Magna Charter of England’.[13]
The Declaration lists ‘a long train of abuses and usurpations’ which had been suffered under the colonial governance of King George. In total, twenty-seven grievances are listed.14 Three subjects of complaint against the King in particular appear in both Magna Carta and the Declaration: interference in trade,15 the raising of taxes without popular consent,16 and the right to a fair trial, including trial by jury.17 Whilst much of the content of the two documents differs, it can be said that both were born of rebellion against what they considered to be unjust and harmful rule, and they listed civil rights which the King, or, in the case of the United States, any future government, should recognize.
The most famous section of the Declaration of Independence is probably its second paragraph: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness’.18 A lot of attention has been paid to these words as a statement of American founding values: the recognition and protection of the natural rights of man. However, less attention is typically given to the rest of the paragraph, which continues ‘whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government‘.19
Here, we can draw another comparison with Magna Carta. This line bears a similarity with the security clause. It was not enough that a government should uphold the rights of the people. The Declaration justifies its break with the King on the basis that if a government fails to uphold and protect certain ‘unalienable’ natural rights, a legitimate right of revolution exists. This, Eric Slauter has argued, was the ‘central political philosophy of the American Revolution’.20 ‘The pursuit of Happiness’, whilst nowadays often quoted, is not defined in the Declaration. One interpretation is that ‘happiness’ should not be read in the sense of emotional wellbeing or security but in the sense of ‘a right of a society to determine its own happiness’. Read in this way, citizens may take against the government if society’s needs are not being met.21
Conclusion
The American Declaration of Independence not only declared independence but justified it. In reading Magna Carta and the American Declaration of Independence side by side, we see that its claims of legitimacy were situated in rhetoric borrowed from English legal history. If the rights of English subjects were threatened, even Englishmen in faraway colonies maintained the right to ‘alter, abolish’ or ‘institute a new government’.22 Trump’s second presidency has been marred by large-scale protests organized by the aptly named ‘No Kings’ movement.23 As the US treasury announced celebratory plans to introduce Trump’s signature on USD bills, a first for a sitting president,24 people might re-examine the history of the right to rebellion.