OPINION

Magna Carta and Its Constitutional Status

By Frederick Schauer
David and Mary Harrison Distinguished Professor of Law

It is widely believed that the United Kingdom has no constitution. Or that it has no written constitution. But legal philosophers and most constitutional theorists know better. They know that the United Kingdom has a constitution and that it is, in large part, written. But what the United Kingdom, like New Zealand and Israel but no other developed countries, does not have is a single-document written constitution. The constitution of the United Kingdom is a collection of writings, understandings, and seemingly ordinary statutes that are accepted by British judges, by British officials, and by much of the British population as having constitutional status. Moreover, it is this very acceptance that serves to elevate these writings and understandings to constitutional status—to make them the standards by which people and officials evaluate the permissibility of the various ordinary actions that those officials do or do not take on a regular basis.

Among the understandings that comprise the British constitution are the way in which no legisla­tion becomes law except by vote of both houses of Parliament and signed approval by the Queen, but also that the Queen is not to withhold her approval of any law duly approved by Parliament. In addi­tion, the constitution includes the principles of freedom of speech and press and certain procedural rights that the British call the principles of natural justice and Americans think of as procedural due process—especially the principles of audi alteram partem (hear the other side) and nemo debet esse in judex sua propria causa (no man should be judge of his own cause).

In the United Kingdom, these principles share their constitutional status with some number of historical documents and Parliamentary enactments, including the Bill of Rights of 1689, the Habeas Corpus Act of 1679, and, most relevantly here, Magna Carta. For Parliament or a British official to take an action inconsistent with Magna Carta is to act unconstitutionally, and other officials, commentators, and often the public will condemn as unconstitutional any action thought to violate the provisions of that ancient document. And although the general absence of judicial review in the United Kingdom (although things have changed slightly with British acceptance of the European Convention on Human Right and membership in the European Union) means that judicial invalidation is not the typical remedy for unconstitutional actions, it remains the case that unconstitutionality according to Magna Carta and the various other documents and understandings will be grounds for criticism. Moreover, the belief that certain actions would violate the constitution is often sufficient for officials to refrain from tak­ing actions that they might otherwise prefer on political or policy grounds. In this sense, the various components of the British constitution genuinely operate as second-order constraints on first-order policy or political preferences, and thus satisfy the fundamental criteria of what a constitution does, and just what a constitution is.

Once we understand that Magna Carta has constitutional status in the United Kingdom (and also New Zealand), we can better appreciate the full nature of the Constitution of the United States. The Constitution that sits behind three inches of glass at the National Archives is, as a first cut, the Constitution of the United States, but it has that status not because it is has been ratified and is otherwise valid according to its own terms. It is that, of course, but so too might a constitution that I might write giving me all of the powers of government. But even if I were to write such a constitution, and even if it were valid according to its own terms, it would still not be the Constitution of the United States. And that is because neither the people nor the officials in the United States would accept it as such. Despite the fact that both the document in the National Archives and my hypothetical constitution could be valid according to their own terms, only the former would be accepted by the people and by officials, and it is this fact of acceptance, and not the formal requirements within the document, that is the ultimate touchstone of legal and constitutional validity.

Once we understand that the constitutionality of the Constitution, as it were, is ultimately a function of the raw fact of acceptance, we can see Magna Carta, even in the United States, in a different light. The Constitution of the United States, as it now exists, consists of most of what is in the document in the National Archives, but not all of it. Some of its provisions, such as the guarantee of a “republican form of government,” are treated by the courts as judicially unenforceable. And others, most prominently the provisions dealing with slavery, are treated by courts and officials as relics of the past, with no contemporary legal import. Conversely, some norms that are nowhere to be found in the document in the National Archives are treated as having constitutional status. For some these include certain canonical writings, such as those of Madison, Jay, and Hamilton in the Federalist Papers. For others they include long-accepted presidential practice, especially in areas of war, national defense, and foreign policy. And still others would add certain widely-shared norms of congressional practice, such as a degree of deference to members of Congress with respect to federal judicial appointments from their own state.

We are now in a position to appreciate the constitutional status of Magna Carta in a new light. A constitutional argument relying on Magna Carta, whether in court or in Congress or in public debate, would be no more inherently out of bounds than a constitutional argument relying on something in The Federalist Papers, or rely­ing on a presidential practice going back to George Washington, or Abraham Lincoln, or Franklin Roosevelt. Even in the United States, the constitutional status of Magna Carta, whether all of it or only some of it, is a function of it being treated, by judges or other official or the public, as having constitutional status. That Magna Carta is not in exact words contained in the document in the National Archives is not dispositive of its constitutional status. As long as an argument from Magna Carta is understood as being an argument from something higher or deeper than ordinary law, it has a kind of constitutional status. Just as Magna Carta is part of the British constitution, so too might some or even all of it, now or in the future, be part of the constitution of the United States as well.