Monday, March 10, 2014

The Fallacy of Written Constitutions

Sunday’s interview at the Daily Bell was with George Burdeau.  In the interview, he discussed the Magna Carta.  I will begin with his concluding statement on this subject, and then proceed to some of the detail.  (In all cases, emphasis added).

Attributing the following concept to the Magna Carta, Burdeau states:

In other words, the king was not above the law, and it this principle and its various accompanying points that remain relevant today.

This concept was not new to the Magna Carta.  It was a fundamental concept in medieval law dating back to the earliest days following the collapse of Rome.  The king was subservient to the law, just as the other barons and nobles were:

The relationship between monarch and subject in all Germanic communities was expressed by the idea of mutual fealty, not by that of unilateral obedience.

Especially in the time of the early Middle Ages, there was no concept of the king as sovereign.  There was also no concept of the people as sovereign.

The king is below the law….if the monarch failed in these duties – and the decision of this question rested with the conscience of every individual member of the community – then every subject, every section of the people, and even the whole community was free to resist him, to abandon him, and to seek out a new monarch.

Both king and people had a duty to the law; the duty was not to each other.

Back to Burdeau:

It is this last series of chapters [of the document] that proved to be the lasting impact of the Magna Carta because it put the English king under the umbrella of lawfulness that extended to the rest of his subjects.

The concept of king under law was first destroyed by William the Conqueror in England, hence the subsequent document.  The Magna Carta did not establish a new relationship.  At best, it attempted to document an old relationship – that of both king and lord all equal under the law.  Under medieval law, the only thing that differentiated the king from the rest was his duty to enforce the law – not create law, only enforce law.

The Magna Carta was no step forward – it was a step backward: backward in time, as an attempt to capture the intent of the law before William, but more importantly it was a step backward because it was written.  The Middle Ages, prior to and outside of the authority of Magna Carta, required no written constitution to ensure law.  The monarch was bound – far more effectively than he has ever been bound by any written constitution:

Was there such a thing as a “constitution” in the Middle Ages?

The monarch was subject not to a specific constitutional check, but to the law in general, which is all-powerful and almost boundless in its lack of definition; he is limited by this law and bound to this law.

Such an environment, while somewhat unstable for the people, was even more so for the king.  He was only one man – a man with some form of kin-right or birth-right, eventually coming to be sanctified by the church, but still he was one man; and equally bound by and to the same law as all other men.  He was “controlled” by the law, not controller of it:

From the point of view of constitutional machinery, the control exercised in this way by the law will presumably be very incomplete and insecure – the very breadth of the mediaeval idea of law allows us to guess this.  But in theory there resulted a complete control of the monarch, a subjection to law so thorough that political considerations and reason of State were excluded and out of the question.

That the monarch faced the same insecurity and instability in the law as did the people was the most remarkable check on any potential abuse.  As opposed to modern, constitutionally defined states where it evolves that it is only the people that have to fear the law, in the mediaeval time all were equally subject to and therefore controlled by the law. 

We have seen the failure of written constitutions – subject to violations virtually from the day of ratification.  Yet this method of unwritten law survived for several centuries after the fall of Rome.

Such is my objection to the glorification of the Magna Carta specifically and written constitutions in general.  In too many cases where these have been implemented, state empowerment and centralization has quickly followed as has the drive to empire.

Back once again to Burdeau.  In his own words, he hints at the flaw of faith in a written constitution:

The Magna Carta was signed by King John at Runnymede in 1215. The Magna Carta means Great Charter and, contrary to popular understanding, there's not just one but 17 versions. The last one was written in 1300 – and it really was written – hand written – as there were no printing presses then. It guaranteed freedoms, including property rights to "free men" ... though the number of "free men" in question was certainly limited.

Nonetheless, it was a significant statement for the times and a contentious one. It was re-negotiated four times as its parties – the English king versus his earls, bishops and barons – struggled with language and the concessions of power.

If it “guaranteed freedoms,” what was the necessity to re-negotiate the document?  Which side changed his / their mind?  The answer should be obvious; Burdeau offers it himself:

What was most surprising was that the final Magna Carta differed considerably from the initial one – and was actually a good deal less radical….

Would those wanting freedoms and property protected from the king be desirous of a “less radical” document?

John never intended to abide the initial document…

Of course he didn’t.

In fact, it was basically discarded within three months.

Of course it was.

King John died in 1216, and a regency council put John's son, King Henry III, in charge. The Magna Carta was reissued but in a much condensed form without many of the concessions that the barons had initially extracted.

Reissued?  I thought these “concessions” were guaranteed.

It influenced the Constitution and Declaration of Independence both. It formally presented concepts of freedom under law and limited government. It set the stage for additional conversations about these issues that have been part of Western tradition as history has evolved. A lot has been made of the heritage of British philosophers like Locke and Hume and economists like Adam Smith, when it comes to tracing the history of the Constitution. But the Magna Carta, you could say, was the document that started it all.

“…the document that started it all.”  As should be clear by now, the document didn’t start that which was good in the relationship between king, noble, and law; medieval law did this beginning 800 years or so before the document was ever considered.

The Magna Carta did start that which was bad in this relationship; it was in writing.  Even within months of this great charter, the king discarded it.  This compared to the multi-century successful track-record of an unwritten constitution.

Apparently the 800 year anniversary is going to be a cause for celebration:

2015 will mark the 800th anniversary of the Magna Carta and there are numerous commemorations in the works, including potentially a memorial bank holiday. Basically, you are looking at five years of celebration leading up to the anniversary and our project is intended as an additional commemoration. The initial boost came from the US Supreme Court, which would like to see an educational commemoration – and that's when I became involved.

Exhibitions of the Magna Carta itself are in the works and June 15th 2015 may be declared a public holiday. There are other events as well. Much of it is driven by The Magna Carta Trust, which is behind the holiday. The UK Royal Mint has been asked for a commemorative coin and perhaps a commemorative stamp may be issued. There are commemorations being planned for schools and libraries.

The Queen of England has agreed to support the efforts toward the celebration:

The Magna Carta Trust is delighted to confirm that Her Majesty has kindly agreed to become its Patron, for the commemoration of the 800th anniversary of the sealing of the Magna Carta at Runnymede on 15th June 2015.

Notice it is the state doing the commemorating; it is the Supreme Court signifying the event.  Are these actors normally supportive of guaranteed freedoms for the rest of us? 

Perhaps they are celebrating for different reasons.

From my conclusion to an earlier post on the subject of mediaeval law:

The written constitution has placed the state above the law – the state self-defines and self-interprets the constitution; this places the state in a position to decide what is law and what isn’t law. The only hope one has to influence this is to turn a minority into a majority.  Such a concept was unknown to the mediaeval mind – each individual held a form of veto.  No majority was necessary, and minority rights were fully protected – even for the minority of one.

There is nothing to celebrate here, not for those who value liberty.


  1. No matter how magnanimous or beneficent, any edict written to pertain to hundreds of thousands of people must be a Procrustean bed. Let villages write Magna Cartas and Constitutions and let them deal with the consequences, good or bad. Let experiments fail or succeed in small labs and let other labs verify the results; good results will be adopted by self-interested parties. Or, they won't and their citizens can vote with their feet. Some people prefer isolation and Ludditism: to each their own. Let power reside in each individual and do not create institutions whereby individuals are made to give up any of that power by a "social contract" that they never agreed to. Pyschos seem to be the problem historically; mitigate the effect they have by reducing the concentration of power in any one institution. Pretty simple, really. Throw the damn Ring in the fires of Mordor already.

  2. I watched a show recently (perhaps Nova) where men and women found buried in peat from the bronze or iron age where supposed to be high ranking nobles or kings who had failed and accordingly sacrificed to the gods.
    Perhaps this is one ancient institution that could be restored.if, at the end your term and if a majority hated your guts then, perhaps on the steps of the Lincoln memorial, you would be ceremonially dispatched. No?

    1. I would rather not allow anyone such coercive and monopolistic power in the first place....

    2. well yes however we need a path to get to that place from here and some people will need convincing about the need for restraint while being 'in power' in that transition stage.

      yours, in a state of swiftian excess.

    3. This is an unusual analysis to say the least. Only a libertarian curmudgeon would argue that Jefferson's eloquent words in the DOI were "bad" or anti-freedom because they were written down. Much is made of the word "guaranteed" here but the word - if I read it right - was applied to the Magna Carta itself, which did indeed offer guarantees. The STATE, however, did not offer the guarantees. The Magna Carta did ... which was why it didn't last very long in its initial form. But nonetheless, it was a definitive statement, and a limiting one. In that sense it is historical. One need only research the statements of King Alfred and others to realize that the idea of unbridled power was an aspirational reality in post-Roman times. This criticism, clever as it is, seems to avoid that reality.

    4. Are you the long time DB reader?

      Both your logic and knowledge of history are lacking:

      “…Jefferson's eloquent words in the DOI were "bad" or anti-freedom because they were written down.”

      The post is clearly about the Constitution, not the “DOI.”

      “One need only research the statements of King Alfred and others to realize that the idea of unbridled power was an aspirational reality in post-Roman times.”

      Read actual history of the Middle Ages. You can start right here at this site: look up labels “fritz kern” and Middle Ages.” The king did not have “unbridled power.”

      “This criticism, clever as it is, seems to avoid that reality.”

      Yes, that’s what I said.

    5. The Magna Carta was no state constitution, anymore than Jefferson's Declaration. Both were statements of an emergent RELATIONSHIP (though a failed one). Charlemagne conquered Europe and King Alfred rewrote its laws: They had enormous power. And even today Britain has no formal, written constitution, though the US does ... and it makes NO difference. Both countries suffer from authoritarian regimes. In your effort to make a clever point at Mr. Burdeau's expense you neglect the reality of the history you want to present.

    6. So you are the longtime DB reader....

      Read what happened within a few short years after Charlemagne's death. Understand the difference in kingship and law in the regions of England, France, and Germany.

      I have described all of this and much more in the aforementioned links - you obviously have not taken any time to consider what I wrote, as you have replied too quickly.

      Until you demonstrate you have considered these posts, there is little point to continue the discussion, although I will post whatever (civil) uninformed reply you care to offer.

    7. The Magna Carta made a point that its supporters obviously believed should be made. Jefferson did the same. Taking the position that they should not have been written seems to be a bit ... disingenuous. Simple enough?

    8. I write about constitutions and you refer to Jefferson.

      You still haven't read anything else I have written on this subject.

      As to the points regarding the Magna Carta, take it up with Fritz Kern.