From Magna Carta to the Montgomery March: common law and civil rights.

AuthorStoner, James R., Jr.
PositionFaulkner Law Symposium: From the Magna Carta to the March from Selma to Montgomery

I have to confess that I did not immediately see the value of juxtaposing recognition of the centuries-old drama at Runnymede that led to the original Magna Carta with commemoration of the fiftieth anniversary of the Selma-to-Montgomery March for voting rights. At first, all I could picture was a Monty Python skit: on one side of the road, the iconic civil rights marchers, mostly African-American, and on the other side, medieval English knights riding by, wearing chainmail and armor, carrying brightly-colored banners--both groups scratching their heads in bewilderment at the other. But a moment's reflection reminded me that the incongruence was no joke; for men calling themselves knights, wearing pseudo-medieval garb, claiming to defend Anglo-Saxonism, wreaked violence on African-Americans who dared demand civil rights or attempted to exercise their constitutional right to vote for almost a hundred years. Is it possible that the modern movement for civil and voting rights had anything in common with the achievement of Magna Carta, and that we might see afresh the nobility of the latter in the light of the more familiar nobility of the movement for civil rights?

There are, I think, several similarities. First, both events took place in the countryside: not as a spontaneous eruption of anonymous crowds as in the cities, but among compatriots, gathering for a specific purpose in a chosen place. Second, both movements were led, or at least accompanied, by clergy. In the case of Magna Carta, there was Stephen Langton, the Archbishop of Canterbury, while the abortive voting rights march was led by Rev. Hosea Williams and the successful Montgomery March was led by Rev. Martin Luther King, Jr., thus suggesting a transcendental dimension to the rights claimed in both instances. Third, both involved the highest reaches of government. The king, of course, was at Runnymede. President Lyndon B. Johnson addressed Congress on the question of voting rights between the first march and the second, proposing what would become the Voting Rights Act of 1965.

Fourth, both Magna Carta and the Voting Rights Act began a century or more of legislation. Magna Carta was confirmed numerous times over the subsequent two hundred years. The Voting Rights Act has now been twice renewed, and the Supreme Court has singled it out for further attention. Looking at the struggle for voting rights as part of the larger Civil Rights Movement of the surrounding decade, it can fairly be said that the campaign for Magna Carta similarly intermingled civil and political rights, stressed equality before the law, and emphasized due process of law, that is, the importance of procedure and precision in legal proceedings. Finally, the politics of both Magna Carta and modern voting rights drew on well-developed traditions of resistance to unjust authority. In fact, both drew upon traditions linked to one another over a vast expanse of time.

In this essay, I will develop a few of these connections by discussing two intervening moments. The first is the American Revolution, particularly its key document, the Declaration of Independence. Second is Reconstmction and its grant of rights to those freed from slavery, and then the subsequent withdrawal of those rights, with the active complicity--if not encouragement--of the United States Supreme Court. The Revolution drew on the Magna Carta experience, which might be seen as a cause of its success. The modern Civil Rights Movement necessarily responded to the failure of Reconstmction, and the issue faced today is whether the "Second Reconstmction" (as modern civil rights have sometimes been called) has succeeded or might yet fail.

MAGNA CARTA AND THE DECLARATION OF INDEPENDENCE

The Declaration of Independence is famous for the ringing cadences of its first two paragraphs, and rightly so: the document has proven to anchor American unity, to define key elements of American identity, and to supply principles that have guided American social and political development. Abraham Lincoln referred to the Declaration's truth that "all men are created equal" as an apple of gold in a frame of silver, (1) and it served like a pilot star guiding his political action, as it would later do for the Civil Rights Movement. When men arose who renounced the value of the Union, they denied the Declaration's salient truth. (2)

Still, the success of the Declaration cannot be attributed solely to its abstract principles. What kind of equality in practice was mandated by men having been created equal? Would the truth, anchored by its authors in "the law of Nature and of Nature's God," change or lose its meaning if men's understanding of nature changed, or if they came to have doubts about the existence of a benevolent Creator? (3) Concerning the form of government the principle entails, the Declaration appears to be merely pragmatic: if it works to secure rights, keep it; if not, change it. Even constitutional monarchy seems permissible, for it is not said here (as it is in Thomas Paine's Common Sense) that kingship is an illegitimate form of government. Instead, it says only that the current occupant of the throne has proven himself "unfit to be the Ruler of a free People." (4) But the indeterminacy of the abstract principles assumes concrete meaning in the long middle section of the Declaration, where the "Facts ... submitted to a candid World" establish that the king has proven himself to be a tyrant, or at least aiming at tyranny, and thus made himself unworthy. (5) What are these facts? They are a series of violations by the king and Parliament of the unwritten constitution of British North America. To name them all here would be more tedious than pointless, but they include such offenses as destroying judicial independence, rendering the military power superior to the civil, quartering troops, forbidding trade, imposing taxes without representation, depriving the accused of trial by jury, abolishing local laws, and suspending colonial legislatures and waging war against them. (6) In every complaint there is implicitly a maxim of the English constitution, claimed by the colonists as their own, and every single one is guarded against in a subsequent provision of the United States Constitution of 1787 or in the Bill of Rights.

Unlike the Bill of Rights, the Declaration of Independence contains no close paraphrase of provisions of Magna Carta, but the influence of the latter on the former seems unmistakable. This is especially true of the bill of particular grievances. Magna Carta begins by reaffirming the freedom of the Church. While the Declaration is without such an analogous provision, the various invocations of the Deity in the document--"Nature's God," author of the laws of nature; the "Creator" that endows men with rights; the "Supreme Judge" to whom they appeal; the "divine Providence" on whom they rely--evidence a shared appeal to transcendent order and an emerging practice of religious liberty. (7) The mention in the Great Charter of the ancient liberties and customs of London and other cities indicates a tradition of local self-government that the Americans drew upon in the settlement and development of their...

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