The 2nd American Revolution: Chapter 3 ~ History of our Democracy started w/ English Magna Carta

by faithgibson on December 14, 2017

Linked Index to all “Second Revolution” posts and stand-alone essays in this series

Back to the Future:

1215 Magna Carta ~ symbol of universal freedom, progenitor of the British representative government, our own Independence & the US Constitution 

Part One ~ Chapter 3

Our Founding Fathers correctly defined factions as dangerous to democracy, as history repeatedly proved. But before trying to fit the issue of ‘factions’ into our constitutional puzzle, let me provide important historical background to the writing our US Constitution – where these ideas came from, how concepts like fairness, a representative government, and human rights became such a core aspect of our Anglo-American heritage.

The story explains why and how democracy stepped into the psyche of Americans like no other country. This also explains why we are so upset when our democratic government does not live up to our high expectation.

A Political Lineage that Traces Back to the Magna Carta

The biggest influence over the Framers of our US Constitution was the historical backdrop of the British system of government, which began with English Magna Carta or ‘Great Charter’.

This was an agreement that checked the exercise of arbitrary power by the English monarch, while also establishing the ideas of human rights and rule of law that applied to the king himself as well as his subjects.

This came about early in the 13th century during the reign of King John, younger brother of the more famous King Richard the Lion-hearted. King John was a serial abuser of royal power who became increasingly tyrannical after years of unsuccessful foreign policies. To pay for his war with France and other extravagances, the king increasing taxed his subjects and brutalized them if they couldn’t pay up. This was particularly onerous to the landed nobility and religious leaders.

The country’s powerful barons eventually got fed up with the King’s arbitrary use of his royal power. Since they had their own private armies, the barons began planning an armed rebellion. However, Archbishop Langton talked them into negotiating with the king instead.

Together the barons and religious leaders created a document of their grievances, which included arbitrary imprisonment, excessive taxation and other violations of human rights by the king. The central point of contention was the “rule of law” — whether the law applied equally to everyone (including the king) or if the king himself was above the law.

This list of grievances was accompanied by a statement of ideals based on their birthright as English citizens. This included the rights we now characterize as ‘life, liberty and the pursuit of happiness’, which are so fundamental to our democracy today.

This historic document came to be known as the Magna Carta and was presented to the king in 1215 on the banks of the Thames, about 20 miles from London. The negotiation took place at ‘Runnymede’, which is still associated with this important historical event. After 4 days of arguing and threats of a military coup, King John agreed the rule of law would apply to the Crown and thus accepted in perpetuity the idea of legal limitations on the use of royal power.

Its extremely rare in the history of human species that someone with absolute power peaceably agreed to share it with others in a formalized and far-reaching way. King John went the extra mile by also agreeing to honor certain ‘self-evident truths’ and civil liberties for his subjects.

The deal was officially sealed when the king presses his royal ring into hot wax affixed to the document in the assembled presence of the bishop and the barons. This momentous occasion was the first of many human rights guaranteed by the Magna Carta.

The Great Charter contained a preamble and 63 clauses, many of which dealt with feudal concerns that no longer apply. However, the document was included laws the king himself was bound to observe and theoretically precluded future English monarchs from ever again reclaiming absolute power.

The Magna Carta was to become the cornerstone for England’s system of representative government as developed by later generations and subsequently the model for many of our own democratic principles and the configuration of our federal government.

Of great importance to Colonial Americans was clause 39, which said “no free man shall be arrested or imprisoned or disseised [dispossessed] or outlawed or exiled or in any way victimised…except by the lawful judgment of his peers or by the law of the land.”

This early and absolute guarantee of trial by jury and ‘habeas corpus’ was the gift that kept on giving, as it also inspired England to adopt a Petition of Rights in 1628 and the Habeas Corpus Act of 1679.

A portrait of Willian Penn was as it was used on the Quaker Oatmeal box

William Penn ~ the Johnny Appleseed of the Magna Carta in Colonial America

But when it comes to our democratic heritage as Americans, the Great Charter’s story had just begun its long intercontinental influence. William Penn was a well-connected and wealthy English Quaker who was repeatedly harassed by the English government for his Protestant religious beliefs.

Of necessity, he became well versed in the clauses of the Magna Carta that defended the right to a fair trial. As luck would have it, King Charles II was personally indebted to Penn to the tune of £16,000. To pay off this debt without depleting the royal treasury, the king granted Penn ownership of a newly formed American colony (Pennsylvania) in 1682.

In preparation for governing his new colony, Penn wrote a document based on the ideas in the Magna Carta. Later referred to by Penn as a “constitution”, this document drew on the language of the Great Charter, particularly clause 40, which stated that ‘to no one will we sell, to no one deny or delay right or justice’.

Shortly after arriving in colonial America in 1682, Penn had an English translation of the Magna Carta printed and widely circulated in the new city of Philadelphia. By this odd happenstance of personalities and historical events, the siren song of democracy crossed the Atlantic to seed the minds and imaginations of the American colonists.

The English preamble to the American Bill of Rights

First English BILL of RIGHTS in 1689

The United States Bill of Rights was modeled after the 1689 English Bill of Rights. This historical document was passed by the English Parliament and signed by King William III just 7 years after Wm. Penn landed in America.

The English Bill of Rights became important in the history of both countries, as it extended principles first introduced by the Magna Carta by limiting the traditional powers of British kings and queens, creating a separation of government powers, guaranteeing certain rights and protected English citizens from the arbitrary power of the crown, bolstered freedom of speech and enhanced democratic elections.

Interestingly enough, this 1689 Bill of Rights also gave the people the ‘right to bear arms’, so long as it was allowed by rule of law. As is still the case today, citizens in the 17th century had to leave their guns at home when visiting the King or any of his palaces, the House of Parliament, the Courts, and specific public occasions.

Build-up to war with Britain by repeated violation of colonists ‘birthrights’

Thus the legacy Magna Carta extended far beyond the era in which it was written and far from the shores of merry old England, as its ideas became thoroughly embedded in the thinking and expectations of the British-American colonists. British-American colonists historically enjoyed the considerable rights and protections of English subjects since Sir Walter Raleigh established the first (ultimately failed) English colony in North America in 1608.

Given this historical mindset, American colonists were not easily fooled. When English kings violated rights clearly guaranteed to all British subjects, the colonists were shocked and angered. Clearly, they were being treated as ‘second-class citizens’ in spite of their lawful status as loyal British-American subjects. This was intolerable. 

In the tradition of public participation that began that began in 1215 by medieval barons, the colonists presented various English kings with their grievances during the first 125 of English colonization (1640 to 1765). They enjoyed only modest and occasional success, but enough to keep the majority of the colonists from seriously nursing ideas of independence.

But the relationship with the British Crown was not a satisfactory situation for English-American subjects, who were simultaneously proud of the English heritage as enshrined in the Magna Carta and also deeply distressed when treated as if they were merely the ‘property’ of the British Crown, to have their pockets picked and their national assets stripped at the ‘pleasure of the king’.

Then in the 1760s, the relatively stable relationship btw Crown and his North American colonies began to quickly unwind. For two centuries, the British colonies in North American had been a treasure trove of valuable (but free) raw materials — animal furs, the best lumber, large cotton crops, and minerals such as iron and lead.  The Crown required that all raw materials be shipped only to the Motherland, where English merchants paid pennies on the dollar and then turned right around and sold them at a great profit all over Europe.

Given such an exploitive arrangement, it was natural that King George III, when he needed money to for the very expensive French and Indians war, chose to raid the coffers of his American colonies.

The Stamp Act – ‘first cause’ of the American Revolution

The process of fleecing the Colonists started in earnest with the “Stamp Act”, passed by the British Parliament on March 22, 1765. This required all American colonists to pay a tax on every piece of printed paper they used, which included all legal documents, ship’s papers, licenses, newspapers, other publications, and even playing cards. This was followed by additional taxes on tea, glass, paper, paint, and lead.

To British-American colonists, all this was a clear violation of the Magna Carta — an illegal and undemocratic move characterized as “taxation without representation”. This gave rise to a very contentious relationship between the Colonists and the Crown and resulted in small but frequent acts of rebellion by ‘uppity colonists’.

But on March 5th, 1770, things suddenly got much more serious when a riot broke out between 400 Boston citizens and six British soldiers. His Majesty’s troops fired into the crowd of American colonists, which left three Americans dead and two more fatally wounded.

While Boston ‘Massacre’ only killed five Americans, it made it crystal clear that British-Americans been cut off from their English birthright under the Magna Carta. King George III was tone-deaf to their grievances and did not take seriously the political backlash by Bostonians and other colonists. From the king’s perspective, the American colonies were his private property, to be treated like a favorite ATM by extracting more taxes and stirring up political hostilities that pitted the colonists against each other.

So in 1773, King George granted exclusive rights to sell English tea at bargain prices certain colonial merchants who were loyal to England. This was a royal version of a political ‘poke in the eye’ to the colonists.

A patriotic group called the Sons of Liberty (lead by John Adams) dressed as Mohawk Indians and boarded a cargo ship full of tea in the Boston Harbor on December 16th, 1773. These rebels gleefully dumped the entire cargo – worth about $90,000 — into the Boston Harbor. A really angry King George promptly sent his Royal Navy to close the harbor, but the other colonies all rallied behind the rebels, so His Majesty’s revenge had little lasting effect.

We all know the story of the Boston Tea Party as a very public “finger in the eye” act of civil disobedience. But an English-speaking people who for centuries had believed that ‘their’ government – the British government — was an ethical system that treated its people fairly under the rule of law, there was no turning back under these circumstances. The future of America as an independent and democratic country hung in the balance.

And while American colonists began fighting the British in April of 1775, the history and impact of the 1215 agreement with the English Crown was still at the heart of beliefs by British-American citizens about the nature of law and the sovereign rights of its citizens, even if the meant a fight against its own Sovern.

Whether we did or did not enjoy the protection of the English Magna Carta was to be settled in the affirmative by winning what the English Crown called the War of Rebellion, the American Colonists called their War of Independence, and American history books call the Revolutionary War of 1776.

The Continuing Influence of the English System on our American Democracy 

However, winning our war for independence in September of 1783 was not the end of the Great Charter’s influence over America’s new government. By 1787, many of the Founding Father felt that our new Constitution, to be consistent with the tradition of the Magna Carta, must also limit the power of the federal government.

Constitutional amendments later known as the Bill of Rights were passed during the process of ratifying the Constitution. These included trial by jury, due process of law, and freedom from ‘cruel and unusual punishments’ — all rights due to citizens of the new nation and believed to have first been codified at Runnymede in 1215. Today we think of these personal civil rights as the most important contribution to our federal government.

But our Founding Fathers were aware that constitutional documents — words on paper guaranteeing personal liberties — were only the beginning of the government’s duty to its citizens, which sometimes requires protecting individuals and groups of Americans from other individuals and groups of Americans.  The rights and freedoms of Americans had to translate into “liberty under law”, a concept often expressed as “my right to swing my arm ends where your nose begins.

But the flip-side of that — protecting citizens from other citizens — is protecting citizens from the government itself. This issue was best encapsulated by James Madison, who famously quipped that: “ … if men were angels, no government would be necessary”

Obviously, how our federal government was to be configured — institutions such as an executive, legislatures and courts, as well as the nuts and bolts of how government functioned — was also a vitally important aspect of our democratic republic.

The 64,000 dollar question for our Founders was how best to enable the government to control the governed while obliging it to control itself? Indeed!

Nuts and Bolts of an English-style Representative Government, return to our review of the Constitution and the issue of “Factions”

“… you must first enable the government to control the governed;
and in the next place, oblige it to control itself … “ 

Having won our War of Independence, the second major influence during the writing of Constitution and the design of the federal system of government was the representative model used by the British. In the 16th, 17th and 18th centuries, the United Kingdom was the only governmental system that included the elements necessary to enable a government to simultaneously control the governed AND to control itself. These included the rule of law, separation of powers, an independent judiciary, checks and balances btw co-equal branches of government, a Bill of Rights, Habeas Corpus, etc.

The British system was a constitutional monarchy with a representative government that shared its powers between the three major class divisions in society – royalty (a king or sovereign executive), aristocracy (House of Lords) and the common people (House of Commons).

In the English system, the role of the judiciary is to represent the rule of law. The Courts were (and still is) independent of the other branches of government. In the British scheme, the role of the judicial system is to settle civil disputes and prevent abuses of power. It protects the country and its population against unlawful encroachment by the government itself and protects the civil and human rights of individual citizens against criminal encroachment by others.

With the inalienable rights of the English Magna Carta enshrined in the hearts the Founding Fathers (many who were themselves British-American citizens) and England’s 3-part model of representative government in mind, they ultimately choose to closely replicate the British system in the US Constitution, abet with tweaks, name changes and the introduction of novel ideas.

The Founding Fathers reconfigured the three-part the English scheme into the American model, which replaced the role of the king with an executive branch headed by a popularly elected president, a legislative scheme that combined a Senate (aristocratic branch) and House of Representative (common people) into the combined branch known as the US Congress.

Last but not least, they broke from the English definition of the Courts as being independent by defining our judiciary system as a co-equal third branch. Like the British system, the judiciary in the United States is also an institution that enforces legitimate government powers, offers protection from the abuse of government power, settles disputes between parties, and provided redress of grievances to individuals and groups in all classes of society.

But none of these ‘tweaks’ and the relatively minor reconfiguration by our Founding Fathers changed the basic rights that were developed by the English system in the centuries following its adoption of the Magna Carta. On our side of the “Pond” (as the Brits refer to the Atlantic Ocean!), each of the independent branches of government is balanced against the lawful powers of one or both of the other branches. This is to guard against the abuse of power by the federal government.

It also promotes the quality of cooperation that is required for the government to act effectively in the public interest, as well as safeguarding our individual civil liberties.

The next chapter will return to the issue of Factions, their influence on the configuration of our Constitution in 17887, and the consequences of these decisions in the 20th and 21st century.

E Pluribus Unum

{Soon to be published} Chapter Four ~ 

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